Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied: (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents; (ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale; (iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption; (v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender; (vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer; (vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer; (viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale; (ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request; (x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable; (xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale; (xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4; (b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and
Appears in 7 contracts
Sources: Mortgage and Security Agreement (Corporate Property Associates 15 Inc), Mortgage and Security Agreement (Corporate Property Associates 15 Inc), Mortgage (Corporate Property Associates 15 Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender One Thousand Five Hundred Dollars ($1,500) in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, Assignment Notice and/or its preparation or affiliation with, the Buyer, in the event of bankruptcy or insolvency review of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption anddocuments.
Appears in 6 contracts
Sources: Lease Agreement, Lease Agreement (Twist Bioscience Corp), Lease Agreement (Twist Bioscience Corp)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions of this Sectionproposed assignee or sublessee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary of Assignment Date, any relationship between Tenant and the first day of the first calendar month after the date hereof (proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) no default after the expiration of notice or grace periods is then continuing hereundergrant such consent, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of refuse such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close andconsent, concurrently therewithin its reasonable discretion, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
22 (b) Notwithstanding provided that Landlord shall further have the foregoing provision of this Section and provided Borrower has not exercised its right to sellreview and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), convey or transfer (iii) if the proposed transaction is a sublease that is not a Permitted Assignment or Qualified Assignment (each as defined below) and the subletting concerns (together with all other then effective subleases) 50% or more of the Individual Properties pursuant Premises, terminate this Lease with respect to Section 8.4(a) abovethe space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Borrower Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be permitteddeemed to be Landlord’s consent to the proposed assignment, after the first anniversary of the first day of the first calendar month after the date hereof (sublease or the date hereof if dated the first day of other transfer. Tenant shall pay to Landlord a calendar month), fee equal to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Three Thousand Five Million Hundred Dollars ($25,000,0003,500) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses its consideration of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice Assignment Notice and/or its preparation or review of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andconsent documents.
Appears in 4 contracts
Sources: Lease Agreement (Sigilon Therapeutics, Inc.), Lease Agreement (Sigilon Therapeutics, Inc.), Lease Agreement (Sigilon Therapeutics, Inc.)
Permitted Transfers. (a) Notwithstanding If the foregoing provisions Term of this Section, Lender shall Agreement is not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month-to-month after the date hereof basis, and if Lessee (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification owner of the material economic terms hereof Hotel) shall have received a bona fide written offer to purchase or lease the Hotel and Lessee (other than a corresponding increase in Borrower's deposits into or the Escrow Fund with respect to Taxes in owner of the event such Sale results in an increase in the real property tax assessment by the applicable taxing authorityHotel), pursuant to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not offer, desires to sell or lease the Hotel to any person, firm or corporation, Lessee (or the owner of the Hotel) shall have the right to sell the Hotel and terminate this Agreement, provided either (a) Lessee pays to Manager a termination payment equal to the average monthly amount of the total Management Fee, including incentive fees paid or which would have been due or owed to Manager for the Hotel during the immediately preceding twelve (12) month period of the Term (or during the actual number of months that have elapsed in the Term if such number of months is less than twelve months), multiplied by the lesser of either (i) Thirty Six (36), provided there are at least three (3) years remaining under the Term, or (ii) the total number of months remaining under the Term if there is less than three 3) years remaining under the Term; or (b) within sixty (60) days following termination, Lessee or any Affiliate) enters into a management agreement with Manager for a replacement hotel or hotels that are commercially reasonably acceptable to Manager, which replacement property shall be a reasonable distance from other hotels that Manager manages and have budgeted annual Gross Operating Revenues no less than the actual annual Gross Operating Revenues of the terminated Hotel (provided that, if Lessee elects to replace pursuant to this clause (b), for any period in which a replacement management agreement is not yet in place Lessee shall pay to Manager the fees which Manager would have received for such period if the termination had not occurred); or (c) Manager is engaged by the third party purchaser to manage the Hotel, on terms acceptable to Manager in its sole discretion, within sixty (60) days following such termination.
(b) If the Term of this Agreement is on a month-to-month basis, Lessee (or the owner of the Hotel) may sell or otherwise transfer the Hotel, and terminate this Agreement, upon thirty (30) days before the date on which such Sale is scheduled written notice to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;Manager.
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(bc) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sellforegoing, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof Lessee (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all owner of the Individual Properties Hotel) may sell or otherwise transfer the Hotel to any Affiliate of the Lessee at any time.
(hereinafter definedd) whose key principal's Notwithstanding the foregoing, Lessee (or the owner of the Hotel) may grant a mortgage, deed of trust, or other encumbrance or security interest ("Key PrincipalMortgage") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval in the Hotel or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver part thereof from time to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andtime.
Appears in 3 contracts
Sources: Management Agreement (Equity Inns Inc), Management Agreement (Equity Inns Inc), Management Agreement (Equity Inns Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its reasonable discretion; or (iii) except in connection with a Permitted Assignment (as defined below), terminate this SectionLease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord fails to respond within such 10 business day period, Lender then Tenant shall provide Landlord with a second written notice stating in bold and all caps 12 point font that Landlord’s failure to respond to Tenant’s Assignment Notice within 5 business days after Landlord’s receipt of the second notice shall be deemed approval by Landlord, and if Landlord does not unreasonably respond within such 5 business day period, then Landlord shall be deemed to have approved such Assignment Notice request. Among other reasons, it shall be reasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would materially lessen the value of the leasehold improvements in the Premises, or would require materially increased services by Landlord; (3) in Landlord’s reasonable judgment, the proposed assignee or subtenant is engaged in areas of scientific research or other business concerns that are controversial such that they may (i) attract or cause negative publicity for or about the Building or the Project, (ii) negatively affect the reputation of the Building, the Project or Landlord, (iii) attract protestors to the Building or the Project, or (iv) lessen the attractiveness of the Building or the Project to any tenants or prospective tenants, purchasers or lenders; (4) in Landlord’s reasonable judgment, the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (5) in Landlord’s reasonable judgment, the character, reputation, or business of the proposed assignee or subtenant is inconsistent with the desired tenant-mix or the quality of other tenancies in the Project or is inconsistent with the type and quality of the nature of the Building; (6) Landlord has received from any prior landlord to the proposed assignee or subtenant a negative report detailing any default(s) and/or litigation with and/or environmental contamination caused by the proposed assignee or subtenant in connection with its lease with such prior landlord; (7) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant; (8) the use of the Premises by the proposed assignee or subtenant will violate any applicable Legal Requirement; (9) the proposed assignee or subtenant is an entity with whom Landlord is negotiating to lease space in the Project; or (10) the assignment or sublease is prohibited by Landlord’s lender. If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to One Thousand Five Hundred Dollars ($1,500) in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such assignment (which approval shall not to be unreasonably withheld or delayed). In determining whether addition, Tenant shall have the right to give or withhold its approval of assign this Lease, upon 30 days prior written notice to Landlord ((x) unless Tenant is prohibited from providing such notice by applicable Legal Requirements in which case Tenant shall notify Landlord promptly thereafter, and (y) if the proposed Buyertransaction is subject to confidentiality requirements, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval Tenant’s advance notification 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 pays Lender, concurrently with the closing Landlord’s execution of such Sale, a non-refundable assumption fee in an amount equal disclosure agreement reasonably acceptable to Landlord and Tenant) but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a legitimate business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumedof Tenant as of (A) the Commencement Date, from and after or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant assignment (a “Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted Assignments are hereinafter referred to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 3 contracts
Sources: Sublease, Sublease (Gossamer Bio, Inc.), Sublease (Gossamer Bio, Inc.)
Permitted Transfers. Notwithstanding anything to the contrary contained in this Agreement, during the Lock-Up Period, each Lock-Up Party may Transfer, without the consent of GigCapital5, any of such Lock-Up Party’s Lock-Up Securities (a) to any of such Lock-Up Party’s Permitted Transferees, upon written notice to GigCapital5 or (b) pursuant to any liquidation, merger, stock exchange or other similar transaction which results in all of GigCapital5’s stockholders having the right to exchange their GigCapital5 Securities for cash, securities or other property subsequent to the Merger; provided, that in connection with any Transfer of such Lock-Up Securities, the restrictions and obligations contained in Section 2.1 and this Section 2.2 will continue to apply to such Lock-Up Securities after any Transfer of such Lock-Up Securities and such transferee shall execute a lock-up agreement substantially in the form of this Agreement for the balance of the Lock-Up Period. Notwithstanding the foregoing provisions of this SectionSection 2.2, Lender shall a Lock-Up Party may (i) not unreasonably withhold consent make a Transfer to a Permitted Transferee if such Transfer has as a purpose the simultaneous saleavoidance of or is otherwise undertaken in contemplation of avoiding the restrictions on Transfers in this Agreement (it being understood that the purpose of this provision includes prohibiting the Transfer to a Permitted Transferee (A) that has been formed to facilitate a material change with respect to who or which entities Beneficially Own the Lock-Up Securities, conveyance or transfer of all of the Individual Properties (as defined B) followed by a change in the Note) in their entirety on relationship between the Lock-Up Party and the Permitted Transferee (or a single occasion (a "Sale"change of control of such Lock-Up Party or Permitted Transferee) after the first anniversary Transfer with the result and effect that the Lock-Up Party has indirectly made a Transfer of Lock-Up Securities by using a Permitted Transferee, which Transfer would not have been directly permitted under this Section 2 had such change in such relationship occurred prior to such Transfer), or (ii) enter into a written plan meeting the first day requirements of Rule 10b5-1 under the first calendar month Exchange Act after the date hereof of this Agreement relating to the sale of the undersigned’s Lock-Up Securities, provided that (or A) the date hereof if dated the first day of a calendar month) and with respect securities subject to such Sale, Lender shall plan may not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default be sold until after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a nonLock-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, Up Period and (bB) prior the Company shall not be required to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingeffect, and the qualification undersigned shall not effect or cause to be effected, any public filing, report or other public announcement regarding the establishment of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andtrading plan.
Appears in 3 contracts
Sources: Business Combination Agreement (Qt Imaging Holdings, Inc.), Lock Up Agreement (Qt Imaging Holdings, Inc.), Business Combination Agreement (GigCapital5, Inc.)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NoteNote and, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;; and
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andwith
Appears in 3 contracts
Sources: Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc), Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc), Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (“Assignment Date”), Tenant shall give Landlord a notice (“Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, or (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting). No failure of Landlord to deliver a timely notice in response to the Assignment Notice shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee not to exceed $[***] for Landlord’s out-of-pocket expenses in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties Premises to any subsidiary or affiliate of Tenant or any entity controlling, controlled by or under common control with Tenant (as defined in the Noteeach a “Permitted Assignment”) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve or disapprove the proposed Buyer, (such approval not to be unreasonably withheld or withheld, delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, conditioned) the Buyer, in the event of bankruptcy or insolvency form of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities sublease or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andassignment.
Appears in 3 contracts
Sources: Sublease Agreement (NextCure, Inc.), Sublease Agreement (NextCure, Inc.), Sublease Agreement (NextCure, Inc.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined in below), then at least 15 business days, but not more than 45 business days, before the Notedate Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) in their entirety on a single occasion (a "Sale") after containing such information about the first anniversary proposed assignee or sublessee, including the proposed use of the first day Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the first calendar month after Premises, the date hereof (Assignment ▇▇▇▇, any relationship between Tenant and the proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, MA/TCR2 Therapeutics Inc. - Page 32 proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) no default after the expiration of notice or grace periods is then continuing hereundergrant such consent, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of refuse such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close andconsent, concurrently therewithin its reasonable discretion, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
22 (b) Notwithstanding provided that Landlord shall further have the foregoing provision of this Section and provided Borrower has not exercised its right to sellreview and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), convey or transfer (iii) if the proposed transaction is a sublease and the subletting concerns (together with all other then effective subleases) 50% or more of the Individual Properties pursuant Premises, terminate this Lease with respect to Section 8.4(a) abovethe space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”), Borrower if Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be permitteddeemed to be Landlord’s consent to the proposed assignment, after the first anniversary of the first day of the first calendar month after the date hereof (sublease or the date hereof if dated the first day of a calendar month)other transfer. Tenant shall pay Landlord for its actual, to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitationup to a maximum of Three Thousand Five Hundred Dollars ($3,500), reasonable attorney's fees, incurred by Lender in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the transfer and all costs and expenses foregoing, Landlord’s consent to an assignment of all third parties and Rating Agencies in connection this Lease or a subletting of any portion of the Premises to any entity controlling, controlled by or under common control with the SaleTenant (a “Permitted Affiliate Assignment”) so long as the terms and conditions set forth in Sections 8.4(a)(i)shall not be required, (iv), (v), (vi), (vii), (viii), (ix) and provided that (x) are satisfied. Borrower shallsuch assignment or subletting is for a bona fide business purpose and not principally for the purpose of transferring the lease, not less than thirty (30y) days before any such transfer, deliver to Lender Tenant shall give Landlord 30 days’ prior written notice of such transfer sublease or assignment, and (z) Landlord shall have the right to approve the form of any such sublease or assignment prior to its execution. In addition, Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or other entity which notice shall is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the assets or the ownership interests of Tenant provided that (i) describe such merger or consolidation, or such acquisition or assumption, as the proposed transfer in reasonable detailcase may be, is for a bona fide business purpose and not principally for the purpose of transferring the Lease, and (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth (as determined in accordance with GAAP) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000)as determined in accordance with GAAP) of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (ciii) such assignee shall agree in writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (a “Permitted Successor Assignment”). A Permitted Affiliate Assignment and Permitted Successor Assignment may each be referred to herein as a “Permitted Assignment”. Notwithstanding the foregoing, a Permitted Affiliate Assignment, Permitted Successor Assignment or Permitted assignment shall not include evidence reasonably satisfactory to Lender any assignment or subletting covered by that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from certain letter agreement between Landlord and after Tenant dated on or about the date of such transferthis Lease. ▇▇▇ ▇▇▇▇▇▇, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and▇▇▇▇▇▇▇▇▇, MA/TCR2 Therapeutics Inc. - Page 33
Appears in 2 contracts
Sources: Lease Agreement (Tcr2 Therapeutics Inc.), Lease Agreement (Tcr2 Therapeutics Inc.)
Permitted Transfers. 6.5.1 Each Shareholder shall have the right to Transfer all or a fractional portion of his, her or its Shares (a “Permitted Transfer”) to any Person or Persons ( a “Permitted Transferee”) if and only if:
(a) Notwithstanding such Transfer is to an entity 100% wholly owned and controlled by a Shareholder and that remains 100% owned and controlled by a Shareholder. A Permitted Transfer may be made without the foregoing provisions consent of this Sectionany other Shareholder, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of and expressly conditioned on the following terms and conditions are satisfiedfollowing:
(i) no default after the expiration of Shareholder desiring to make a Permitted Transfer, gives at least Ten (10) Business Days prior notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;proposed transfer and identifies the Permitted Transferee and provides written evidence that the Permitted Transferee is 100% wholly owned and must remain 100% wholly owned by the Shareholder transferor; and
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to Permitted Transferee executes a borrower and pays to Lender a non-refundable application fee Joinder Agreement substantially in the amount form of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, Exhibit “K” and such approval not Permitted Transferee causes to be unreasonably withheld or delayed. In determining whether to give or withhold its approval paid all reasonable expenses of the proposed Buyer, Lender shall consider Company in connection with the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesTransfer; 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent Company shall have received: (1.0%A) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender the Company and its counsel
(A) counsel that registration is not required for such Transfer under the Buyer's formation documents provide for Securities Act or under any applicable state securities laws and that such Transfer will not be in violation of the matters described in subparagraph (vii) above, Securities Act or applicable state securities laws or any rule or regulation promulgated thereunder and/or (B) that such other documentation reasonably requested by the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer Board in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated connection with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;Transfer.
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey A Shareholder may pledge any or transfer all of his, her or its Shares now or hereafter owned by such Shareholder or grant a security interest therein to secure the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary indebtedness of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) such Shareholder so long as such indebtedness was incurred for the sole purpose of paying into the Company any Additional Required Capital or Additional Discretionary Capital or for the purpose of refinancing indebtedness incurred for such purpose; provided, however, that any pledgee shall acquire only a security interest in such Shares entitling such pledgee to the proceeds from any sale of such Shares made in compliance with the terms of this Agreement and conditions shall not acquire title to such Shares or any other rights incident thereto. The pledge agreements or other related financing agreements of any Shareholder shall be subject to and acknowledge the rights of the Company and the other Shareholders set forth herein, including the absolute right to cance pledged shares as provided in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and6.6.5 herein.
Appears in 2 contracts
Sources: Stock Purchase and Shareholders Agreement, Stock Purchase and Shareholders Agreement (Earthfirst Technologies Inc)
Permitted Transfers. Notwithstanding the other provisions of this paragraph 6E, transfers of Designated Property (each, a “Permitted Transfer”) will be permitted, provided, that the following conditions are met:
(a) Notwithstanding such Permitted Transfer is made for fair market value;
(b) the foregoing provisions proceeds of this Section, Lender shall not unreasonably withhold consent such Permitted Transfer are applied to pay down the simultaneous sale, conveyance or revolving loans outstanding under the Bank Agreement (but without reducing the commitments of the banks under the Bank Agreement);
(c) in the case of a transfer of all of the Individual Properties (as defined ownership interests in a Designated LLC, the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) Designated LLC subject to such transfer shall reaffirm its joint and several obligations with respect to such Sale, Lender shall not require the Secured Obligations by entering into a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's guaranty 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 the Purchasers (the “Designated Guaranty”); and
(d) all assets of a transferred Designated LLC other than Designated Property shall remain subject to Lender's title insurance policy insuring the lien of this Security Instrument insuring thereon that fee simple title has been granted to the Property is vested in Collateral Agent for the Buyer;
(vii) Buyer shall furnish, if benefit of the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing Banks and the Buyer's capacity and good standingPurchasers as security for the Secured Obligations, and the qualification transferee of such Designated LLC and the signers to execute Designated LLC shall each have acknowledged the assumption full force and effect of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer such lien and of the entitiesDesignated Guaranty executed by such Designated LLC pursuant to (c) above. In the event of a proposed Permitted Transfer of any membership units or interests of a Designated LLC or any Designated Property, the proposed transferor will give the Collateral Agent and the Purchasers at least fifteen Business Days prior written notice of the proposed Permitted Transfer. Subject to the Purchasers’ election to exercise their rights of first refusal as set forth below, the Collateral Agent will, in accordance with Section 24 of the Security Agreement, within ten Business Days of receipt of such notice, endorse, assign and deliver to the transferor the requested certificates, if any, of membership units or ownership interests, or any other Designated Property in the Collateral Agent’s possession or under its control, which are partners included in the Permitted Transfer by the transferor and any other instruments or members documents evidencing the ownership of such membership units or ownership interest or Designated Property in the Collateral Agent’s possession or under its control. Upon receipt of the Buyer. The Buyer and such constituent partners, members or shareholders proceeds of Buyer the Permitted Transfer for application to the revolving loans outstanding under the Bank Agreement (as but without reducing the case may becommitments of the banks under the Bank Agreement), as Lender shall requirethe Collateral Agent, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof banks party to the Bank Agreement and the requirements of the Rating AgenciesPurchasers shall have no further interest or right to such membership units or interests or such Designated Property, and whose formation documents shall be approved and, if requested by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) transferor or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrumenttransferor’s transferee, the assumption agreement and the Other Security Documents are validCollateral Agent, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets Section 24 of the Buyer will not be consolidated with Security Agreement, shall execute an appropriate termination of the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) lien with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities units or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualificationinterests, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participationssuch Designated Property, as applicable;
(xi) An affiliate of Buyer ; provided that any Designated LLC subject to a Permitted Transfer shall retain its joint and several obligations with respect to the Secured Obligations by executing a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from Designated Guaranty and after the date liens on the assets of such Sale, all Designated LLC (other than Designated Property) granted to the Collateral Agent for the benefit of the obligations of Guarantor under banks party to the Environmental Indemnity Bank Agreement and the Guaranty Purchasers as security for the Secured Obligations shall continue in force and shall be reaffirmed by the Designated LLC as a condition of Recourse such Permitted Transfer. To the extent that, notwithstanding the above, any Permitted Transfer of membership units or ownership interests or Designated Property by the Company or any of its Subsidiaries occurs during the Designated Property Notice Period, the proceeds shall be applied to pay the outstanding Secured Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction terms of the terms and conditions of this Section 8.4;
(b) Notwithstanding Intercreditor Agreement. Upon the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day commencement of a calendar month)Designated Property Notice Period, to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions provisions set forth in Sections 8.4(a)(i)this Agreement and the Security Documents allowing the Permitted Transfers shall terminate until such time, (iv)if ever, (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender as restored by the written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all election of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andPurchasers.
Appears in 2 contracts
Sources: Note Purchase and Private Shelf Agreement (Waste Industries Usa Inc), Note Purchase Agreement (Waste Industries Usa Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salea Permitted Transfer may occur without Lender’s prior consent, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedmet:
(i) no default after at least 30 days prior to the expiration proposed Permitted Transfer, Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsthis Section;
(ii) Borrower gives there is no Event of Default under the Loan Documents either when Lender written receives the notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning or when the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriatePermitted Transfer occurs;
(iii) Borrower pays Lender, concurrently with the closing proposed Permitted Transfer will not result in a violation of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) any of the then outstanding principal balance covenants contained in the Sections entitled, “ERISA Compliance” and “Anti-Terrorism” and Borrower will deliver to Lender such documentation of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies compliance as Lender requests in connection with the Saleits sole discretion;
(iv) Buyer (a) assumes At the time Lender receives the notice and agrees to pay all indebtedness secured hereby as at the time when the proposed Transfer occurs, Lender and when due subject to the provisions of Article 11 of the Notetransferee are not opposing and have not opposed each other in a pending or threatened action, and (b) prior to claim or concurrently with the closing of such Salelitigation before a legal, the Buyer executes, without any cost equitable or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumptionadministrative tribunal;
(v) Borrower and pays all of Lender’s expenses relating to the Buyer executeTransfer, without any cost or expense to including Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender’s reasonable attorneys’ fees;
(vi) Borrower delivers Lender is satisfied that the Property will continue to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance be managed by a property manager satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;; and
(vii) Buyer shall furnishOn the date of the proposed Permitted Transfer, if so requested by Lender, a Uniform Commercial Code search report is delivered to Lender relating to (i) the Buyer is a corporationtransferee, partnership (ii) any predecessor entity that transferee merged with or other entity, all appropriate papers evidencing the Buyer's capacity and good standinginto, and the qualification (iii) any entity where transferee acquired substantially all of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member orits assets, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel each case satisfactory to Lender and its counsel
(A) indicating that the Buyer's formation documents provide for the matters described Lender’s security interest in subparagraph (vii) above, (B) that the assumption such portion of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which Property as is perfected by filing a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any financing statement is prior to all other entity having an interest in, or affiliation with, the Buyer, security interests reflected in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;report.
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection Upon compliance with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i)the preceding subsection, the following Transfers (iv)the “Permitted Transfers”) may occur without Lender’s prior consent:
(i) transfers of direct or indirect interests in Borrower, provided, that subsequent to the Transfer, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ controls (v), (vi), (vii), (viii), (ixdirectly or indirectly) the Property and (x) are satisfied. Borrower shall, retains directly or indirectly not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe a 15% equity interest in the proposed transfer in reasonable detail, Property; and
(ii) include evidence reasonably satisfactory transfers of direct or indirect interests in Borrower, provided, that subsequent to Lender that the proposed transferee is an Affiliate transfer following the death of Borrower ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. controls (directly or indirectly) the Property and that such Key Principal has a net worth of retains directly or indirectly not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that a 15% equity interest in the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andProperty.
Appears in 2 contracts
Sources: Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing Statement (Inland Real Estate Corp), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing Statement (Inland Real Estate Corp)
Permitted Transfers. If Landlord consents to any Sublease or Assignment as set forth in Section 18(b):
(a1) Notwithstanding Tenant may thereafter, within one hundred eighty (180) days after Landlord’s consent, enter into such Assignment or Sublease, but only with the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to party and upon substantially the simultaneous sale, conveyance or transfer of all of the Individual Properties (same terms as defined set forth in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such SaleTransfer Notice, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, thatthat the financial terms contained in the Assignment or Sublease shall be no less favorable to Tenant than those set forth in the Transfer Notice.
(2) In the case of a Sublease, notwithstanding Lender's agreement Tenant shall pay to consider Landlord fifty percent (50%) of the difference between (x) any and all sums actually received by Tenant in connection with such Sublease (including key money, bonus money and any payment in excess of fair market value for (A) services rendered by Tenant in connection with such Sublease or (B) assets, fixtures, inventory, equipment or furniture transferred by Tenant in connection with such Sublease, but expressly excluding any payment up to the fair market value for the items referenced in the foregoing factors in determining whether to give or withhold such approvalclauses (A) and/or (B)), such approval shall be given or withheld based minus (y) the sum of the proportionate amount (on what Lender determines to be commercially a rentable square footage basis) of rent (including Basic Rent and Tenant’s Proportionate Share of Operating Expenses) payable by Tenant under this Lease for the Transfer Space plus any actual and reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expensesincurred by the Tenant in connection with such Sublease (including brokerage commissions, including, without limitation, reasonable attorneys' legal fees, incurred improvement costs for work for the benefit of the subtenant, improvement allowances or other monetary concessions or inducements provided to the subtenant, the gross revenue as to the Transfer Space paid to Landlord by Lender Tenant for all days the Transfer Space was vacated from the date that Tenant first vacated the Transfer Space until the date the subtenant was to pay rent, costs of advertising the space for sublease and unamortized cost of initial and subsequent improvements to the Premises by Tenant [collectively, the “Transfer Costs”]), which amounts shall not be paid by Tenant to Landlord until Tenant has recovered its Transfer Costs. Once Tenant has recouped its Transfer Costs, Tenant shall pay Landlord its share of the amounts due hereunder on a monthly basis.
(3) In the case of an Assignment, Tenant shall pay to Landlord fifty percent (50%) of any transfer or assignment fee, purchase price or other consideration received by Tenant in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject Assignment attributable to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 value of this Security Instrument insuring that fee simple title Lease (but Landlord shall not be entitled to any proceeds paid for the sale of Tenant’s business which are not related to the Property is vested in value of this Lease or for the Buyer;
(vii) Buyer shall furnishfair market value of any assets, if the Buyer is a corporationfixtures, partnership inventory, equipment or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved furniture transferred by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into Tenant in connection with such Sale;Assignment) less the Transfer Costs, which amounts shall be paid by Tenant to Landlord as provided in Section 18(c)(2) above.
(ix4) Buyer Any Sublease or Assignment shall furnish an opinion of counsel satisfactory be subject to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations provisions of Guarantor under this Lease, and Landlord’s consent to any Sublease or Assignment shall not be construed as a consent to any terms thereof which conflict with any of the Environmental Indemnity and the Guaranty provisions of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject this Lease except to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right extent that Landlord specifically agrees in writing to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined bound by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andconflicting terms.
Appears in 2 contracts
Sources: Lease Agreement (Redwood Trust Inc), Lease Agreement (Redwood Trust Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to. Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially Landlord’s reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 2 contracts
Sources: Sublease Agreement (Immune Design Corp.), Sublease Agreement (Immune Design Corp.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined in below), then at least 10 business days, but not more than 45 business days, before the Notedate Tenant desires the assignment or sublease to be effective (“Assignment Date”), Tenant shall give Landlord a notice (“Assignment Notice”) in their entirety on a single occasion (a "Sale") after containing such information about the first anniversary proposed assignee or sublessee, including the proposed use of the first day Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the first calendar month after Premises, the date hereof (Assignment Date, any relationship between Tenant and the proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Notegrant such consent, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of refuse such consent, in its reasonable discretion (provided that Landlord shall further have the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled right to close and, concurrently therewith, gives Lender all such information concerning review and approve or disapprove the proposed transferee form of sublease prior to the Property (hereinaftereffective date of any such subletting). Tenant shall pay to Landlord a fee equal to $1,500 in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents, "Buyer") as Lender would reasonably require in evaluating an initial extension and which fee shall comprise all of credit to a borrower Landlord’s attorneys’ and pays to Lender a non-refundable application fee in the amount of $2,500.00other fees associated therewith. Lender Tenant shall have the right to approve assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or disapprove other entity that is a successor-in-interest to Tenant, by way of merger, consolidation, or corporate reorganization, or by the proposed Buyer, such approval not to be unreasonably withheld purchase of all or delayed. In determining whether to give or withhold its approval substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) abovepurpose of transferring this Lease, (Bii) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants, and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) aboveassignment (a “Permitted Assignment”). Among other reasons, Borrower it shall be permitted, after the first anniversary reasonable for Landlord to withhold its consent in any of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall these instances: (i) describe the proposed transfer assignee or sublessee is engaged in areas of scientific research or other business concerns that are controversial, in Landlord’s reasonable detailjudgment, or Tenant’s proposed use of the Premises will violate any applicable Legal Requirement, (ii) include evidence reasonably satisfactory to Lender that the proposed assignee or transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars lacks the creditworthiness to support the financial obligations it would incur under the proposed assignment or sublease, ($25,000,000)iii) in Landlord’s reasonable judgment, and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all use of the obligations of Guarantor under Premises by the Environmental Indemnity and proposed assignee or sublessee would require increased services by Landlord beyond those services required by all other tenants in the Guaranty pursuant Building, (iv) Landlord has received from any other landlord to the proposed assignee or sublessee a negative report concerning such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andother landlord’s experience with the proposed assignee or sublessee, (v) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or sublessee, (vi) the proposed assignment will create a vacancy elsewhere in the Project, or (vii) the assignment or sublease is prohibited by Landlord’s lender.
Appears in 2 contracts
Sources: Lease Agreement (Glycomimetics Inc), Lease Agreement (Glycomimetics Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent anything to the simultaneous salecontrary contained herein, conveyance and subject to the terms of any Facility Mortgage, PSLT-ALS Holdings shall have the right to consent, such consent not to be unreasonably withheld, conditioned or transfer delayed, to the proposed sale (including a sale in the form of all a merger or business combination) of fifty percent (50%) or more of the Individual Properties (as defined in the Note) in their entirety on a single occasion outstanding shares of voting stock of Guarantor or voting stock or membership interests of any Parent of Guarantor, but excluding any Permitted Management Incentive Program from such calculation (a "SalePermitted Transfer") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale), Lender provided that, PSLT-ALS Holdings' consent shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
be required if: (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender ALS Holdings provides PSLT-ALS Holdings written notice of the terms Notice of such prospective Sale proposed Permitted Transfer not less than thirty (30) days before prior to the effective date on which such Sale is scheduled thereof, together with evidence reasonably satisfactory to close andPSLT-ALS Holdings of compliance with clause (ii) below, concurrently therewith(ii) ALS Holdings furnishes evidence reasonably satisfactory to PSLT-ALS Holdings that the industry experience in owning, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower operating and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating managing senior living facilities similar to the PropertyFacilities (as determined by PSLT-ALS Holdings) of the senior management of Guarantor or the Successor Guarantor, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject after giving effect to such conditions as Lender may deem reasonably appropriate;
transfer, is at least comparable to or better than that of Guarantor, (iii) Borrower pays Lender, concurrently with ALS Holdings furnishes evidence to PSLT-ALS Holdings that the closing Net Worth of Guarantor or any successor entity proposed to be delivering a guaranty of this Agreement following any such Sale, a Permitted Transfer (the "Successor Guarantor") shall at least equal the Net Worth of Guarantor immediately prior to such Permitted Transfer (which Net Worth determination shall not take into account any extraordinary and non-refundable assumption fee in an amount equal recurring transactions during the twelve (12) months prior to all out-of-pocket costs and expensessuch Permitted Transfer which reduce the net worth of Guarantor), including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees ALS Holdings furnishes evidence to pay all indebtedness secured hereby as and when due subject to PSLT-ALS Holdings that Guarantor or the provisions of Article 11 of the NoteSuccessor Guarantor, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements continue to own all of the Rating Agenciesmembership interests in ALS Holdings, (v) ALS Holdings furnishes evidence to PSLT-ALS Holdings that ALS Holdings shall continue to be a Special Purpose Entity and whose formation documents shall be approved by counsel continue to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director own all of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, membership interests in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or each of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityAlterra Lessees, and (Evi) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from Guarantor or the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or ParticipationsSuccessor Guarantor, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twentythe case may be, shall execute and deliver to PSLT-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all ALS Holdings either an affirmation of the obligations of Guarantor under the Environmental Indemnity Guaranty in form and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence substance reasonably satisfactory to Lender that PSLT-ALS Holdings, or a new guaranty of this Agreement in form and substance identical to the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)Guaranty, and (c) include evidence reasonably satisfactory to Lender that as the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andcase may be.
Appears in 2 contracts
Sources: Lease Agreement (Provident Senior Living Trust), Lease Agreement (Brookdale Senior Living Inc.)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective ("Assignment Date"), Tenant shall give Landlord a notice ("Assignment Notice") Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease ("Term Sheet"), and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, subject to Landlord's review and approval or disapproval of the proposed assignment or sublease in its final form (which final form shall be consistent in all material respects with the Term Sheet) prior to the effective date of any such assignment or subletting, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises, or (iv) terminate this SectionLease with respect to the space described in the Assignment Notice as of the Assignment Date (an "Assignment Termination"). If Landlord delivers notice of its election to exercise an Assignment Termination, Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord's consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, (A) Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or other entity that is a successor-in-interest to Tenant, by way of merger, consolidation, or corporate reorganization, or by the purchase of all or substantially all of the Individual Properties assets, stock (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (including options to purchase stock), or the date hereof if dated the first day ownership interests of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity Tenant provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice such merger or grace periods is then continuing hereunder, under the Noteconsolidation, or any such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of the Other Security Documents;
transferring this Lease, and (ii) Borrower gives Lender written notice the net worth (as determined in accordance with generally accepted accounting principles ("GAAP")) of the terms of such prospective Sale assignee is not less than thirty the net worth (30as determined in accordance with GAAP) days before of Tenant as of the date on which of Tenant's most current quarterly or annual financial statements, and (iii) such Sale is scheduled assignee shall agree in writing to close and, concurrently therewith, gives Lender assume all such information concerning the proposed transferee of the Property terms, covenants, and conditions of this Lease arising after the effective date of the assignment, and (hereinafterB) Landlord's consent to an assignment of this Lease or a subletting of any portion of the Premises to any entity controlling, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender controlled by or under common control with Tenant shall not be required, provided that Landlord shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and sublease or assignment (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all each of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the transactions described in this paragraph constitute a "GuarantyPermitted Assignment") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 2 contracts
Sources: Lease Agreement (Opgen Inc), Lease Agreement (Opgen Inc)
Permitted Transfers. (a) 5.1 Notwithstanding the foregoing provisions any provision of this Section, Lender shall not unreasonably withhold consent Agreement to the simultaneous salecontrary, conveyance the Shareholders shall irrevocably and unconditionally agree that a GRAND's shareholder may at any time at his own discretion transfer (and do so once or transfer of all of several times) the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (shares or the date hereof if dated rights to shares in GRAND to the first day managers of a calendar month) and with respect to such SaleAlfa-Eco Group, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each individual persons (managers of the following terms and conditions are satisfied:
(iAlfa-Eco Group) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel other Shareholders of the Company. In such an event no pre-emptive rights of the other Shareholder (to Lender. An individual recommended buy out Shares in the Company and any other rights) shall arise.
5.2 Notwithstanding any provisions of this Agreement to the contrary, the Shareholders irrevocably and unconditionally agree that GRAND shall at any time until 1 March 2002 be entitled to assign or transfer their rights under this Agreement and all Shares (but not part only) to another company, and no rights of other Shareholders of the Company or other persons to such Shares shall arise, provided such a company is wholly owned and controlled by the Buyer existing shareholders of GRAND as at the date hereof, and approved by Lender that GRAND shall serve 21 (twenty one) days prior to such transfer provide and deliver to CTF all such details, information, documents and evidence relating to the intended transferee company and its shareholders and members as an independent director CTF shall require prior to such a permitted transfer and provided further that GRAND hereby undertakes to procure that the transferee company shall execute the Deed of Adherence and become jointly and severally liable with GRAND to CTF under the Buyer (if the Buyer is a corporation) provisions of this Agreement and that any such transfer or the Buyer's corporate general partner assignment shall not affect diminish or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume impair the obligations of Borrower under any management agreements pertaining GRAND as a party to this Agreement. Subject to GRAND complying with the Property or assign provisions of this Clause and of this Agreement CTF undertakes, at the sole expense of GRAND, to Lender as additional security any new management agreement entered into take all actions reasonably necessary and sufficient to approve and fulfil such transfer and assignment made in connection compliance with such Sale;this provision. SCHEDULE 4 Form of Share Purchase Agreement -------------------------------- This Agreement is made the __________ day of ____________ BETWEEN
(ix1) Buyer shall furnish an opinion [insert name and details of counsel satisfactory to Lender and its counselDissenting Shareholder] and
(A2) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption [insert details of the indebtedness evidenced hereby has been duly authorized, executed Eco Holdings Limited or name and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member details of Group Company or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than TwentyNon-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption anddissenting Shareholder]
Appears in 2 contracts
Sources: Shareholders' Agreement (Open Joint Stock Co Vimpel Communications), Shareholders' Agreement (Open Joint Stock Co Vimpel Communications)
Permitted Transfers. Notwithstanding provision (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day following Transfers of a calendar monthMortgaged Property by Borrower or Guarantor, upon thirty (30) and with respect days prior written notice to such SaleLender, Lender shall not require a modification are permitted without the consent of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedLender:
(i) no default after The grant of a leasehold interest in individual dwelling units or commercial spaces in accordance with the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;Instrument.
(ii) Borrower gives Lender written notice A sale or other disposition of obsolete or worn out personal property which is contemporaneously replaced by comparable personal property of equal or greater value which is free and clear of liens, encumbrances and security interests other than those created by the terms Loan Documents or Permitted Liens.
(iii) The creation of such prospective Sale not less than a mechanic’s or materialmen’s lien or judgment lien against a Mortgaged Property which is released of record or otherwise remedied to Lender’s satisfaction within thirty (30) days before of the date on which such Sale is scheduled of creation.
(iv) The grant of an easement if, prior to close andthe granting of the easement, concurrently therewith, gives Borrower causes to be submitted to Lender all information required by Lender to evaluate the easement, and if Lender consents to such information concerning easement based upon Lender’s determination that the proposed transferee easement will not materially affect the operation of the Mortgaged Property (hereinafter, "Buyer") as Lender would reasonably require or Lender’s interest in evaluating an initial extension of credit to a borrower the Mortgaged Property and Borrower pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Saleon demand, a non-refundable assumption fee in an amount equal to all reasonable third party out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, expenses incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Notereviewing Borrower’s request. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior Lender shall not unreasonably withhold its consent to or concurrently with withhold its agreement to subordinate the closing lien of a Security Instrument to (1) the grant of a utility easement serving a Mortgaged Property to a publicly operated utility, or (2) the grant of an easement related to expansion or widening of roadways, provided that any such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all easement is 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory reasonably acceptable to Lender and its counsel
(A) that does not materially and adversely affect the Buyer's formation documents provide for the matters described in subparagraph (vii) aboveaccess, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member use or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day marketability of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andMortgaged Property.
Appears in 2 contracts
Sources: Master Credit Facility Agreement (Education Realty Trust, Inc.), Master Credit Facility Agreement (Education Realty Trust, Inc.)
Permitted Transfers. Notwithstanding anything to the contrary contained herein, and subject to the terms of any Facility Mortgage, PSLT-BLC Holdings shall have the right to consent, such consent not to be unreasonably withheld, conditioned or delayed, to any of the following (aeach, a "Permitted Transfer"): (i) Notwithstanding a sale of fifty percent (50%) or more of the foregoing provisions outstanding shares of this Sectionstock in Guarantor (in the aggregate, Lender including any prior sales of stock), but excluding any Permitted Management Incentive Program from such calculation, (ii) a sale by Guarantor of all or substantially all of its assets, or (iii) a sale of fifty percent (50%) or more of the membership interests in Fortress Brookdale Acquisition LLC ("Fortress"), but excluding any Permitted Management Incentive Program, provided that, PSLT-BLC Holdings' consent shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and be required with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
foregoing if: (iiA) Borrower gives Lender BLC Holdings provides PSLT-BLC Holdings written notice of the terms Notice of such prospective Sale proposed Permitted Transfer not less than thirty (30) days before prior to the effective date on which such Sale is scheduled thereof, together with evidence reasonably satisfactory to close andPSLT-BLC Holdings of compliance with clause (B) below, concurrently therewith(B) BLC Holdings furnishes evidence reasonably satisfactory to PSLT-BLC Holdings that the industry experience in owning, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower operating and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating managing senior living facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions Facilities (as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a nondetermined by PSLT-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%BLC Holdings) of the then outstanding principal balance senior management of Guarantor or the Note. Borrower also paysSuccessor Guarantor, concurrently with the closing of after giving effect to such Saletransfer, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior is at least comparable to or concurrently with better than that of Guarantor, (C) BLC Holdings furnishes evidence to PSLT-BLC Holdings that the closing Net Worth of such Sale, the Buyer executes, without Guarantor or any cost or expense successor entity proposed to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 be delivering a guaranty of this Security Instrument insuring Agreement following any such Permitted Transfer (the "Successor Guarantor") shall be at least equal to Seventy Five Million Dollars ($75,000,000), (D) BLC Holdings furnishes evidence to PSLT-BLC Holdings that fee simple title to Guarantor or the Property is vested in the Buyer;
(vii) Buyer shall furnishSuccessor Guarantor, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), shall continue to own all of the membership interests in BLC Holdings, (E) BLC Holdings furnishes evidence to PSLT-BLC Holdings that BLC Holdings shall continue to be a Special Purpose Entity and shall continue to own all of the membership interests in each of the Brookdale Lessees, and (F) Guarantor or the Successor Guarantor, as Lender shall requirethe case may be, shall be single purpose, "bankruptcy remote" entities which satisfy execute and deliver to PSLT-BLC Holdings (1) in the requirements case of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters Permitted Transfer described in subparagraph clause (viii) above, (B) that the assumption an affirmation of the indebtedness evidenced hereby has been duly authorized, executed Guaranty in form and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest insubstance reasonably satisfactory to PSLT-BLC Holdings, or affiliation with, the Buyer, (2) in the event case of bankruptcy or insolvency of any such entity, a Permitted Transfer described in clauses (ii) and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(aiii) above, Borrower shall be permitted, after a new guaranty of this Agreement in form and substance identical to the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andGuaranty.
Appears in 2 contracts
Sources: Agreement Regarding Leases (Brookdale Senior Living Inc.), Lease Agreement (Provident Senior Living Trust)
Permitted Transfers. Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, during and subsequent to the Lock-Up Period, each Significant Stockholder may Transfer, without the consent of the Company, any of such Significant Stockholder’s Restricted Securities (a) to any of such Significant Stockholder’s Permitted Transferees that prior to such Transfer has entered into a joinder to this Agreement in a form reasonably acceptable to the Company, (b) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual or pursuant to a qualified domestic relations order, (c) in connection with any liquidation, merger, business combination, consolidation, stock exchange or other similar transaction involving the Company and/or its subsidiary(ies) that, in each case, is approved by the Company Board, which results in the Company’s stockholders having the right to exchange at least a majority of the then outstanding Company Securities for cash, securities or other property or (d) (I) during the Lock-Up Period, in connection with the Initial Shelf Takedown (as defined in the Amended and Restated Registration Rights Agreement), including the exercise of any right of such Significant Stockholder under the Amended and Restated Registration Rights Agreement in connection therewith, and (II) subsequent to the Lock-Up Period, pursuant to the exercise of any right of such Significant Stockholder under the Amended and Restated Registration Rights Agreement (provided that such Significant Stockholder shall not exercise its rights pursuant to Section 5 thereof to knowingly Transfer to a Prohibited Transferee in contravention of Section 2.1). Notwithstanding the foregoing provisions of this SectionSection 2.2, Lender shall a Significant Stockholder may (i) not unreasonably withhold consent make a Transfer to a Permitted Transferee if such Transfer has as a purpose the simultaneous saleavoidance of or is otherwise undertaken in contemplation of avoiding the restrictions on Transfers in this Agreement (it being understood that the purpose of this provision includes prohibiting the Transfer to a Permitted Transferee (x) that has been formed to facilitate a material change with respect to who or which entities Beneficially Own the Restricted Securities, conveyance or transfer of all of the Individual Properties (as defined y) followed by a change in the Note) in their entirety on relationship between the Significant Stockholder and the Permitted Transferee (or a single occasion (a "Sale"change of control of such Significant Stockholder or Permitted Transferee) after the first anniversary Transfer, in each case, with the result and effect that the Significant Stockholder has indirectly made a Transfer of Restricted Securities by using a Permitted Transferee, which Transfer would not have been directly permitted under this Article II had such change in such relationship occurred prior to such Transfer), or (ii) enter into a written plan meeting the first day requirements of Rule 10b5-1 under the first calendar month Exchange Act after the date hereof Closing relating to the sale of such Significant Stockholder’s Restricted Securities and effect, or cause to be effected, Transfers of Restricted Securities pursuant to the terms thereof; provided that (or A) the date hereof if dated the first day of a calendar month) and with respect securities subject to such Sale, Lender shall plan may not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default be sold until after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a nonLock-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, Up Period and (bB) prior the Company shall not be required to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingeffect, and the qualification undersigned shall not effect or cause to be effected, any public filing, report or other public announcement regarding the establishment of the signers to execute the assumption of the indebtedness secured herebytrading plan, which papers shall include certified copies of all documents relating in each case, except to the organization and formation of extent required by applicable Law in the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) Company’s or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, applicable Significant Stockholder’s reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andjudgment.
Appears in 2 contracts
Sources: Significant Stockholder Agreement (Getty Images Holdings, Inc.), Significant Stockholder Agreement (Shutterstock, Inc.)
Permitted Transfers. Notwithstanding provision (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day following Transfers of a calendar month) and with respect to such Sale, Lender shall not require a modification Mortgaged Property by Borrower are permitted without the consent of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedLender:
(i) no default after The grant of a leasehold interest in home sites or commercial spaces in accordance with the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;Instrument.
(ii) Borrower gives Lender written notice A sale or other disposition of the terms obsolete or worn out personal property having a value of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the $50,000 in any Calendar Year per Mortgaged Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to or having a borrower and pays to Lender a non-refundable application fee in the amount value of $2,500.00. Lender shall have 50,000 or more if it is contemporaneously replaced by comparable personal property of equal or greater value which is free and clear of liens, encumbrances and security interests other than those created by the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;Loan Documents.
(iii) The creation of a mechanic's or materialmen's liens or judgment liens against a Mortgaged Property for equipment and vehicles in an aggregate amount not in excess of $100,000, or mechanic's or materialmen's liens or judgment liens against a Mortgaged Property which are released of record, bonded to the reasonable satisfaction of Lender, or otherwise remedied to Lender's satisfaction within 30 days of the date of creation.
(iv) The grant of an easement, right of way, license or similar real property interest if, prior to the granting of the easement, right of way, license or similar real property interest, Borrower causes to be submitted to Lender all information required by Lender to evaluate the easement, and if Lender consents to such easement based upon Lender's determination that the easement will not materially and adversely affect the operation of the Mortgaged Property or Lender's interest in the Mortgaged Property and Borrower pays to Lender, concurrently with the closing within 15 days of such Saledemand, a non-refundable assumption fee in an amount equal to all out-of-pocket reasonable costs and expenses, including, without limitation, reasonable attorneys' fees, expenses incurred by Lender in connection with reviewing Borrower's request. Lender shall not unreasonably withhold its consent to or withhold its agreement to subordinate the Sale plus lien of a Security Instrument to (A) the grant of a utility easement serving a Mortgaged Property to a publicly operated utility, (B) the grant of an amount equal easement related to one percent expansion or widening of roadways, or (1.0%C) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs easements for cable and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Noteinternet services, and (b) prior to or concurrently with the closing installation and use of cable and internet equipment, provided that any such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all easement is 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory reasonably acceptable to Lender and its counsel
(A) that does not materially and adversely affect the Buyer's formation documents provide for the matters described in subparagraph (vii) aboveaccess, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member use or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day marketability of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andMortgaged Property.
Appears in 2 contracts
Sources: Master Credit Facility Agreement (Sun Communities Inc), Master Credit Facility Agreement (Sun Communities Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (a“Assignment Date”), Tenant shall give Landlord a notice (“Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its reasonable discretion (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iii) terminate this SectionLease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 15 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to $[***] in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, (1) Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (Premises to any entity controlling, controlled by or the date hereof if dated the first day of a calendar month) and under common control with respect to such Sale, Lender Tenant shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Noteassignment, and (b2) Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or concurrently with other entity that is a successor-in-interest to Tenant, by way of merger, consolidation, or corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Saleassets or the ownership interests of Tenant provided that (A) such merger or consolidation, all in form and substance satisfactory to Lenderor such acquisition or assumption, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy is for a good business purpose and not principally for the requirements purpose of Article IV hereof and the requirements of the Rating Agenciestransferring this Lease, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) of Guarantor as of the Commencement Date, and (iii) such assignee shall have assumed, from and after the date of such Sale, agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's assignment (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent transfers described in clauses (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x2) are satisfiedeach constitute a “Permitted Assignment”). Borrower shall, The Assignment Termination shall not less than thirty (30) days before any such transfer, deliver apply to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andPermitted Assignment.
Appears in 2 contracts
Sources: Lease Agreement (Arbutus Biopharma Corp), Lease Agreement (Arbutus Biopharma Corp)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iv) terminate this SectionLease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to One Thousand Five Hundred Dollars ($1,500) in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumedof Tenant as of (A) the Commencement Date, from and after or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease (b) Notwithstanding the foregoing provision of this Section a “Corporate Permitted Assignment”). Control Permitted Assignments and provided Borrower has not exercised its right Corporate Permitted Assignments are hereinafter referred to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 2 contracts
Sources: Lease Agreement (Corvus Pharmaceuticals, Inc.), Lease Agreement (Corvus Pharmaceuticals, Inc.)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NoteNote and, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender▇▇▇▇▇▇;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender▇▇▇▇▇▇'s title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender▇▇▇▇▇▇'s discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender▇▇▇▇▇▇, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;; and
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andwith
Appears in 2 contracts
Sources: Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Corporate Property Associates 15 Inc)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender shall not unreasonably withhold consent other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined in below), then at least 15 business days, but not more than 45 business days, before the Notedate Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) in their entirety on a single occasion (a "Sale") after containing such information about the first anniversary proposed assignee or sublessee, including the proposed use of the first day Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first calendar month proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date hereof of any such subletting), or (or the date hereof if dated the first day of a calendar monthiv) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender One Thousand Five Hundred Dollars ($1,500) in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the Sale plus an amount equal foregoing, Tenant shall have the right to one percent (1.0%) assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumedof Tenant as of (A) the Commencement Date, from and after or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof assignment (or the date hereof if dated the first day of a calendar month“Permitted Assignment”), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 2 contracts
Sources: Lease Agreement (CytomX Therapeutics, Inc.), Lease Agreement (CytomX Therapeutics, Inc.)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord's consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender One Thousand Five Hundred Dollars ($1,500) in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, Assignment Notice and/or its preparation or affiliation with, the Buyer, in the event of bankruptcy or insolvency review of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption anddocuments.
Appears in 2 contracts
Sources: Lease Agreement (Stem Cell Assurance, Inc.), Lease Agreement (Stem Cell Assurance, Inc.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) at least 15 business days before the date on which such Sale is scheduled Tenant desires the assignment or sublease to close andbe effective (“Assignment Date”), concurrently therewith, gives Lender all Tenant shall give Landlord a notice (“Assignment Notice”) containing such information concerning about the proposed transferee assignee or sublessee, including the proposed use of the Property Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may reasonably request for its consideration whether to grant its consent, (hereinafterf the proposed assignment or sublease is not then available in its final form, "Buyer"Tenant shall provide Landlord with a copy of the letter of intent or other document containing the material terms and conditions of the proposed assignment or subletting. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) as Lender would grant such consent, (ii) refuse such consent, in its reasonable discretion (provided that Landlord shall further have the right to review and reasonably require in evaluating an initial extension approve or disapprove the proposed form of credit sublease prior to a borrower and pays the effective date of any such subletting), or (iii) terminate this Lease with respect to Lender a non-refundable application fee the space described in the amount Assignment Notice as of $2,500.00the Assignment Date as long as the proposed subletting described in the Assignment Notice involves all or substantially all of the Premises (an “Assignment Termination”). Lender If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein gran ▇▇▇, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially Landlord’s reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with its consideration of any Assignment Notice. Notwithstanding any contrary provision contained in this Section Tenant shall have the Sale plus an amount equal right to one percent (1.0%) assign this Lease, upon 20 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or other entity that is a successor-in-interest to Tenant, by way of merger, consolidation, or corporate reorganization, or by the purchase of all or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that the assumption purpose of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, transferring this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect the net worth of the assignee is at least equal to the net worth of Tenant as of the Commencement Date, and (iii) such other matters as Lender may reasonably request;
(x) Lender assignee shall have received confirmation agree in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof assignment (or the date hereof if dated the first day of a calendar month“Permitted Assignment”), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") . The net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions determinations set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice this paragraph shall (i) describe the proposed transfer be made in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection accordance with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andGAAP,
Appears in 2 contracts
Sources: Lease Agreement (NextCure, Inc.), Lease Agreement (NextCure, Inc.)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 10 business days after receipt of the Assignment Notice: (i) grant such consent (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting); (ii) refuse such consent, in its reasonable discretion; or (iii) with respect to any proposed assignment or transfer of this SectionLease, Lender or with respect to any proposed subletting for substantially the remainder of the Term of more than 50% of the Premises, terminate this Lease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). Among other reasons, it shall be reasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would lessen the value of the leasehold improvements in the Premises, or would require increased services by Landlord; (3) in Landlord’s reasonable judgment, the proposed assignee or subtenant is engaged in areas of scientific research or other business concerns that are controversial such that they may (i) attract or cause negative publicity for or about the Building or the Project, (ii) negatively affect the reputation of the Building, the Project or Landlord, (iii) attract protestors to the Building or the Project, or (iv) lessen the attractiveness of the Building or the Project to any tenants or prospective tenants, purchasers or lenders; (4) in Landlord’s reasonable judgment, the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (5) in Landlord’s reasonable judgment, the character, reputation, or business of the proposed assignee or subtenant is inconsistent with the desired tenant-mix or the quality of other tenancies in the Project or is inconsistent with the type and quality of the nature of the Building; (6) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant; (7) the use of the Premises by the proposed assignee or subtenant will violate any applicable Legal Requirement; (8) the proposed assignee or subtenant, or any entity that, directly or indirectly, controls, is controlled by, or is under common control with the proposed assignee or subtenant, is then an occupant of the Project; (9) the proposed assignee or subtenant is an entity with whom Landlord is currently negotiating to lease space in the Project; or (10) the assignment or sublease is prohibited by ▇▇▇▇▇▇▇▇’s lender. If Landlord delivers notice of its election to Building B5 – First and Second Floors/Boundless Bio - Page 22 exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after ▇▇▇▇▇▇▇▇’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to Two Thousand Five Hundred Dollars ($2,500) in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give or withhold its approval of assign this Lease, upon 30 days prior written notice to Landlord ((x) unless Tenant is prohibited from providing such notice by applicable Legal Requirements in which case Tenant shall notify Landlord promptly thereafter, and (y) if the proposed Buyertransaction is subject to confidentiality requirements, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval Tenant’s advance notification 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 pays Lender, concurrently with the closing Landlord’s execution of such Sale, a non-refundable assumption fee in an amount equal disclosure agreement reasonably acceptable to Landlord and Tenant) but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that the assumption purpose of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, transferring this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumedof Tenant as of (A) the Commencement Date, from and after or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease (b) Notwithstanding the foregoing provision of this Section a “Corporate Permitted Assignment”). Control Permitted Assignments and provided Borrower has not exercised its right Corporate Permitted Assignments are hereinafter referred to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 1 contract
Permitted Transfers. If Landlord consents to any Sublease or Assignment as set forth in Section 18(b):
(a1) Notwithstanding Tenant may thereafter, within ninety (90) days after Landlord’s consent, enter into such Assignment or Sublease, but only with the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to party and upon the simultaneous sale, conveyance or transfer of all of the Individual Properties (same terms as defined set forth in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security DocumentsTransfer Notice;
(ii2) Borrower gives Lender written notice In the case of a Sublease, Tenant shall pay to Landlord monthly, together with monthly installments of rent hereunder, fifty percent (50%) of the terms difference between (x) any and all sums payable to Tenant in connection with such Sublease (including key money, bonus money and any payment in excess of fair market value for services rendered by Tenant in connection with such prospective Sale not less than thirty Sublease or for assets, fixtures, inventory, equipment or furniture transferred by Tenant in connection with such Sublease), minus (30y) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee sum of the Property proportionate amount (hereinafter, "Buyer"on a rentable square footage basis) as Lender would reasonably require in evaluating an initial extension of credit to a borrower Basic Rent payable by Tenant under this Lease for the space covered by such Sublease plus any actual and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender the Tenant in connection with such Sublease (including brokerage commissions and legal fees) and the reasonable costs of Alterations to the Premises to prepare the Premises for such Sublease;
(3) In the case of an Assignment, Tenant shall pay to Landlord, as and when received, fifty percent (50%) of any transfer or assignment fee, purchase price or other consideration received by Tenant in connection with the Sale plus an amount equal Assignment attributable to one percent (1.0%) the value of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Salethis Lease;
(iv4) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due Any Sublease or Assignment shall be subject to all of the provisions of Article 11 this Lease, and Landlord’s consent to any Sublease or Assignment shall not be construed as a consent to any terms thereof which conflict with any of the Note, and (b) prior provisions of this Lease except to or concurrently with the closing of extent that Landlord specifically agrees in writing to be bound by such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;conflicting terms; and
(v5) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
No Transferee (vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) than with respect to such other matters as Lender may reasonably request;
(xan assignment or sublease approved pursuant to Section 18(h) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000hereof) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sellexercise any right or option under this Lease to lease additional space, convey extend the Term, or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andterminate this Lease.
Appears in 1 contract
Sources: Lease Agreement (Amarin Corp Plc\uk)
Permitted Transfers. No Partner shall sell, assign, transfer, encumber, or otherwise dispose of all or any portion of its Ownership Interest in the Partnership unless it shall have obtained the written consent of all other Partners or shall have complied with the provisions of this Article 17. Subject to the foregoing, a Partner (herein the "Transferring Partner") may dispose of all or any part of its Ownership Interest in the Partnership provided that such proposed sale is not made as part of a transaction involving the sale of any item other than such interest unless the market value of such Ownership Interest can be separately identified and demonstrated by complying with the following procedure:
(a) Notwithstanding The Transferring Partner shall give written notice (the foregoing provisions of this Section, Lender shall "Disposition Notice") to each other Partner hereto (the "Remaining Partners") not unreasonably withhold consent less than forty-five (45) days prior to the simultaneous saleeffective date of such disposition, conveyance or transfer stating the interest to be sold and the price and terms of all of sale and identifying the Individual Properties proposed transferee (as defined in herein the Note) in their entirety on a single occasion "Proposed Transferee"). Such notice, to be effective, shall be accompanied by an agreement executed by the Transferring Partner and the Proposed Transferee (a the "SalePurchase Agreement") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of containing all the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the proposed sale, which agreement demonstrates that completion of the sale is contingent only upon (i) no default after the expiration non-exercise of notice or grace periods is then continuing hereunderrights of first refusal under this Article 17, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender the obtaining of any required government approvals and (iii) the satisfaction of a standard due diligence review, including such items as title, environmental, and certain other specifically itemized defects. The Remaining Partners shall then have first options to purchase all such Ownership Interest on the same terms as in the Purchase Agreement in the proportion which their Ownership Interest bears to the Ownership Interests of all Remaining Partners, and those desiring to do so shall exercise such options by giving written notice of thereof to the terms of such prospective Sale not less than Transferring partner and all other Remaining Partners within thirty (30) days before after the date on notice described above is given. Any Ownership Interest as to which such Sale first options are not exercised shall be deemed re-offered to the Remaining Partners who exercised their first options, and such Partners shall, for a period of ten (10) days from the expiration of the thirty (30) day period, have second options to purchase the same (at the same price, on the same terms, and by notice as stated above delivered within the ten (10) day period) in the proportion that their Ownership Interest bears to the Ownership Interests of all Partners exercising their first options or in such proportions as they may mutually agree upon. Any Ownership Interest not elected to be purchased during the ten (10) day period shall remain under option to those Remaining Partners who have exercised both the first and second options, to be purchased proportionately as stated above or in such other manner as such Remaining Partners may mutually agree upon, but notice of election to purchase all of the Ownership Interest originally offered must be given to the Transferring Partner and the Remaining Partners within forty-five (45) days from the notice of offer given by the Transferring Partner. If elections to purchase all of the offered Ownership Interest have been made within the forty-five (45) day period, those Partners electing to purchase shall be irrevocably obligated to promptly deposit with the Secretary of the Partnership certified checks in favor of the Transferring Partner for the purchase price of the Ownership Interest so purchased who shall distribute the checks to the Transferring Partner upon receipt of checks evidencing one hundred percent (100%) of the offered Ownership Interest. If notices of elections to purchase less than all of the offered Ownership Interest have been given at the expiration of the forty-five (45) day period, the Transferring Partner may complete the sale of all of the offered Ownership Interest to the Proposed Transferee, subject to the compliance with Section 17.2(b), on the same terms as contained in the Purchase Agreement, at any time within one hundred twenty (120) days thereafter. If the sale to the Proposed Transferee is scheduled not completed within the one hundred twenty (120) day period, all of the Ownership Interest originally offered shall again become subject to close andthe foregoing restrictions in this Section 17.2(a).
(b) At the time written notice is given to each Partner of a proposed sale in accordance with Section 17.2(a), the Transferring Partner shall include with such notice information sufficient to demonstrate to the other Partners that the Proposed Transferee has adequate financial capability to fulfill the obligations of a Partner hereunder as set forth in Exhibit C, which such Proposed Transferee will assume in the event of such transfer. The period of evaluation of the Proposed Transferee shall run concurrently therewithwith the period of the first option being offered pursuant to Section 17.2(a). Within thirty (30) days of the notice of proposed sale, gives Lender each of the other Partners shall deliver to all the other Partners its reasonable and good faith opinion as to whether the adequate financial capability of the Proposed Transferee has been demonstrated. If any Partner fails to deliver such an opinion, it shall be deemed to have determined that the adequate financial capability of the Proposed Transferee has been demonstrated. During such thirty (30) day consideration period, any Partner may request of the Transferring Partner, and the Transferring Partner shall provide, such supplemental information concerning the proposed transferee Proposed Transferee as may be reasonably necessary for the requesting Partner to make such evaluation.
(c) If the transfer of the Property offered Ownership Interest to the Proposed Transferee is to be completed, after compliance with the conditions set forth in Sections 17.2(a) and (hereinafterb), "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Transferring Partner shall have the right to approve transfer to the Proposed Transferee the Ownership Interest in the Partnership specified in the notice referred to above and upon such transfer shall, subject to this Article 17, be relieved of all its obligations and liabilities under this Agreement arising after (but not before) the effective date of such transfer, but only to the extent that such obligations and liabilities arise out of or disapprove are connected with the proposed BuyerOwnership Interest so transferred; provided that, such approval if a Partner or Partners having an aggregate ownership Interest in excess of forty percent (40%) give notice under the terms of Section 17.2(b) that the Proposed Transferee does not to meet the requirements of Section 17.2(b), the Transferring Partner shall be unreasonably withheld or delayed. In determining whether to give or withhold its approval liable for all of the proposed Buyerobligations and liabilities of its Proposed Transferee under this Agreement, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesas hereafter amended (including any liabilities for breach of this Agreement); provided, howeverfurther, that, notwithstanding Lenderin such event, the Transferring Partner shall be liable for the Proposed Transferee's agreement obligations and liabilities hereunder until such time as the Proposed Transferee demonstrates to consider the foregoing factors Partnership Committee that it has adequate financial capability to fulfill the obligations of a Partner and only to the extent that such obligations and liabilities:
(1) arise out of, or are connected with, the Ownership Interest transferred to such transferee by the Transferring Partner, and
(2) arise under this Agreement as it exists on the date of any such transfer and as it may thereafter be amended or supplemented, but such amendments or supplements shall not in determining whether to give any material way increase or withhold adversely affect any of the obligations or Confidential Treatment Requested. The redacted material has been separately filed with the Commission. liabilities hereunder of such approvalTransferring Partner as they exist on the date of such transfer or extend the term of this Agreement past December 31, such approval 2046. Any Transferring Partner who retains liability hereunder shall be given or withheld based on what Lender determines copies of all notices (simultaneously with its Proposed Transferee) concerning any obligations due and owing hereunder from its Proposed Transferee. As a condition precedent to be commercially reasonable andany person becoming a Partner, if givensuch Proposed Transferee shall expressly assume the obligations of this Agreement by executing and delivering one (or, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with at the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) request of the then outstanding principal balance of the Note. Borrower also paysPartnership, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(ivmore) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 counterpart of this Security Instrument insuring that fee simple title Agreement to each Partner and shall execute such other documents as the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers Partnership Committee may reasonably request relating to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating Transferring Partner's obligations and liabilities concerning the Partnership.
(d) Notwithstanding any provision in this Section 17 to the organization contrary, in the event WTLPS or WPCLP elect to transfer all or any portion of its Ownership Interest to a Proposed Transferee other than an Affiliate of WTLPS or WPCLP on or before August 15, 1997; CPL or CRR shall have the right to * purchase such interest from WTLPS or WPCLP at a price equal to REDACTED per percent of Ownership Interest in the Partnership. In the event WTLPS or WPCLP elect to transfer all or any portion of its Ownership Interest on or between August 16, 1997, and formation December 31, 1999; CPL or CRR shall have the right but not the obligation to purchase such interest from WTLPS or WPCLP * at a price equal to the higher of (i) REDACTED per percent of Ownership Interest in the Buyer and of the entitiesPartnership, if anyplus WTLPS's or WPCLP's share, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations Incremental Revenue Capital Contributions (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (proportionate to the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval percent of Ownership Interest being tendered to CPL or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before CRR for any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andIncremental Revenue
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises (agenerally, a "TRANSFER"), then at least 15 business days, but not more than 30 business days, before the date Tenant desires the Transfer to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a Notice (the "ASSIGNMENT NOTICE") Notwithstanding containing such information about the foregoing provisions of this Sectionproposed transferee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used or stored in the NotePremises, the Assignment Date, any relationship between Tenant and the proposed transferee, and all material terms and conditions of the proposed Transfer, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving Notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant or refuse such consent, in their entirety on its sole and absolute discretion, with respect to any Transfer other than a single occasion straightforward sublease of not more than 5,000 square feet of the Premises (a "SaleMINOR SUBLEASE") after the first anniversary of the first day of the first calendar month after the date hereof (), or the date hereof if dated the first day of a calendar month) and grant or refuse such consent, in its reasonable discretion, with respect to such Salea Minor Sublease, Lender shall not require a modification of the material economic terms hereof or (other than a corresponding increase in Borrower's deposits into the Escrow Fund ii) terminate this Lease with respect to Taxes the space described in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)Assignment Notice, to any person or entity provided that each as of the following terms and conditions are satisfied:
Assignment Date (i) no default after the expiration of notice or grace periods is then continuing hereunderan "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove the proposed Buyer, such approval not withdraw its Assignment Notice by Notice to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing Landlord of such Saleelection within 5 days after Landlord's Notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, a non-refundable assumption fee this Lease shall continue in an amount equal to all out-of-pocket costs full force and expenseseffect. If Tenant does not withdraw such Assignment Notice, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingLease, and the qualification term and estate herein granted, shall terminate as of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) Assignment Date with respect to the space described in such other matters as Lender may reasonably request;
(x) Lender Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) be deemed to be Landlord's consent to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) proposed Transfer. Tenant shall have assumed, from and after the date of such Sale, reimburse Landlord for all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all reasonable out-of-pocket expenses, including without limitation, reasonable attorney's feesup to a maximum of $1,000.00, incurred by Lender Landlord in connection with the transfer and all costs and expenses its consideration of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding So long as no uncured Event of Default exists and so long as Tenant and Guarantor remain fully liable under the foregoing provisions Lease and the Lease Guaranty, Tenant may cause a Transfer at any time upon receipt of this SectionLandlord’s consent, Lender which consent shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether Landlord must respond to give or withhold its approval Tenant’s request within ten (10) days after receipt of such request by Tenant for a Transfer to any transferee who is comparable in quality to those in other buildings of similar class and quality in the proposed Buyer, Lender shall consider South ▇▇▇▇▇▇▇ County submarket of Olathe and who will use the Buyer's experience and track record Premises in owning and operating facilities similar a manner generally comparable to the Property, use of comparable space in the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement South ▇▇▇▇▇▇▇ County submarket. Tenant hereby agrees 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to pay all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies Landlord, including reasonable attorney fees, in connection with the Sale;
any proposed Transfer to a Proposed Transferee (iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject regardless of whether Landlord consents to the provisions Transfer, which consent shall not be unreasonably withheld or delayed). In the event of Article 11 an approved Transfer, Tenant shall be entitled to retain all of the Note, Profits actually received by Tenant pursuant to such approved assignment or sublease (but only to the extent Tenant remains current on all of its monetary obligations under this Lease and (b) prior to or concurrently with Tenant is not otherwise in default hereunder). Tenant may Transfer the closing of such Sale, the Buyer executesLease at any time, without receipt of Landlord’s consent, to any cost or expense Related Assignee, so long as such Transfer is not entered into as a subterfuge to Lender, such documents avoid the obligations and agreements restrictions of the Lease and so long as Lender shall reasonably require to evidence Tenant and effectuate said assumption;
(v) Borrower Guarantor remain fully liable for all obligations under the Lease and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the BuyerLease Guaranty. The Buyer parties hereto acknowledge and such constituent partners, members or shareholders of Buyer (as agree that Landlord shall not have the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy right to recapture the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest inPremises, or affiliation withany part thereof, the Buyeror to terminate this Lease, in the event of bankruptcy any Transfer or insolvency proposed Transfer. Notwithstanding the above, in the event Tenant requests a Transfer within the last twenty-four (24) months of the Term (or any such entityextension thereof), then Landlord may recapture the Premises and (E) with respect to such other matters terminate the Lease, effective as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory Transfer; provided such recapture right shall not apply to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory Transfer to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption anda Related Assignee.
Appears in 1 contract
Sources: Office Lease Agreement (Premiere Global Services, Inc.)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below, then at least [***] business days, but not more than [***] business days, before the date Tenant desires the assignment or sublease to be effective (the "Assignment Date"), Tenant shall give Landlord a notice (the "Assignment Notice") Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within [***] business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iv) terminate this Lease with respect to the space described in the Assignment Notice as of the Assignment Date provided that such Assignment Notice was for an assignment of this SectionLease or a proposed sublease of the entire Premises for the remainder of the Term (an "Assignment Termination"). If Landlord delivers notice of its election to exercise an Assignment Termination, Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within [***] business days after ▇▇▇▇▇▇▇▇'s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord's consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to [***] in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyerassignment, such which approval shall not to be unreasonably withheld withheld, conditioned or delayed. In determining whether addition, Tenant shall have the right to give assign this Lease, upon [***] days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease (b) Notwithstanding the foregoing provision of this Section a “Corporate Permitted Assignment”). Control Permitted Assignments and provided Borrower has not exercised its right Corporate Permitted Assignments are hereinafter referred to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice, but not to be unreasonably withheld exceed $2,500 per Assignment Notice. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or delayed. In determining whether to give or withhold its approval a subletting of any portion of the proposed BuyerPremises to any entity controlling, Lender controlled by or under common control with Tenant (a “Control Permitted Assignment”) shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesnot be required; provided, however, that, notwithstanding Lender's that Tenant provides Landlord with a copy of the agreement documenting such sublease or assignment and the same specifically provides that (A) Tenant is not released from Tenant’s obligations hereunder and that the primary liability of Tenant to consider pay the foregoing factors in determining whether Rent due Landlord hereunder and to give or withhold such approval, such approval shall be given or withheld based on what Lender determines perform all other obligations to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred performed by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NoteTenant hereunder is not altered, and (bB) the assignee of, or subtenant under, this Lease shall, by reason of accepting such assignment or entering into such sublease, be deemed, for the benefit of Landlord, to have assumed and agreed to perform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Tenant during the term of said assignment or sublease. In addition, Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or concurrently with other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Saleassets or the ownership interests of Tenant provided that (i) such merger or consolidation, all in form and substance satisfactory to Lenderor such acquisition or assumption, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a valid business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Lease arising after the effective date of the assignment (a “Corporate Permitted Assignment”). A Control Permitted Assignment and a Corporate Permitted Assignment are hereinafter collectively referred to as a “Permitted Assignment.” Notwithstanding anything to the contrary contained in this paragraph, if the provisions of (i) and/or (ii) of Section 8.4;
(b22(f) Notwithstanding apply to a Permitted Assignment, Landlord shall have the foregoing provision of this Section and provided Borrower has not exercised its absolute right to sell, convey or transfer all of the Individual Properties pursuant refuse to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), consent to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent such Permitted Assignment. Landlord acknowledges and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and agrees that (x) are satisfied. Borrower shall, Landlord’s right under the preceding paragraph to receive notice in the case of a Corporate Permitted Assignment is not less than thirty (30) days before any such transfer, deliver intended to Lender written create a consent right in favor of Landlord as to the transaction constituting the Corporate Permitted Assignment but rather the right to receive prior notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)Corporate Permitted Assignment, and (cy) include evidence reasonably satisfactory Landlord shall keep all non-public information made available by Tenant to Lender that Landlord regarding the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after proposed Permitted Assignment confidential until the effective date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andsaid Permitted Assignment.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding anything to the contrary contained in this A&R Registration Rights Agreement, during the Company Shareholder Lock-Up Period and the Insider Lock-Up Period, as applicable, each Company Shareholder (including each Insider) or its Permitted Transferee may Transfer, and during the Sponsor Lock-Up Period, the Sponsor or its Permitted Transferee may Transfer, in each case without the consent of PubCo, any of such Company Shareholder’s Lock-Up Shares or the Sponsor’s Lock-Up Shares, as applicable, to any of such Person’s Permitted Transferees; provided that the restrictions and obligations contained in Section 3.1 and this Section 3.2 will continue to apply to such Lock-Up Shares after any Transfer thereof. Notwithstanding the foregoing, nothing in this A&R Registration Agreement shall prohibit a Company Shareholder from entering into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act after the date of this A&R Registration Rights Agreement relating to the sale of such Person’s Lock-Up Shares; provided that (A) the securities subject to such plan may not be sold until after the expiration of the applicable Lock-Up Period and (B) PubCo shall not be required to effect, and such Person shall not effect or cause to be effected, any public filing, report or other public announcement regarding the establishment of the trading plan.
(b) The Transferee of any Lock-Up Shares prior to the expiration of the applicable Lock-Up Period in accordance with the terms of this A&R Registration Rights Agreement shall have no rights under this A&R Registration Rights Agreement, unless, for the avoidance of doubt, such Transferee is a Permitted Transferee. Any Transferee of Lock-Up Shares who is a Permitted Transferee of the Transferor shall be required, at the time of and as a condition to such Transfer, to become a party to this A&R Registration Rights Agreement by executing and delivering a joinder in the form attached to this A&R Registration Rights Agreement as Exhibit B, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of this A&R Registration Rights Agreement. Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authoritySection 3.2(b), to any person or entity provided that each of the following terms and conditions are satisfied:
a Holder may (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit make a Transfer to a borrower and pays to Lender Permitted Transferee if such Transfer has as a non-refundable application fee purpose the avoidance of or is otherwise undertaken in contemplation of avoiding the amount of $2,500.00. Lender shall have restrictions on Transfers in this A&R Registration Rights Agreement (it being understood that the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 purpose of this Security Instrument insuring that fee simple title provision includes prohibiting the Transfer to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
Permitted Transferee (A) that has been formed to facilitate a material change with respect to who or which entities Beneficially Own the Buyer's formation documents provide for the matters described in subparagraph (vii) aboveunderlying Lock-Up Shares, or (B) that followed by a change in the assumption of relationship between the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement Holder and the Other Security Documents are valid, binding and enforceable against Permitted Transferee (or a change of control of such Holder or Permitted Transferee) after the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated Transfer with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, result and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will Holder has indirectly made a Transfer of Lock-Up Shares by using a Permitted Transferee, which Transfer would not result have been directly permitted under this Article III had such change in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant relationship occurred prior to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar monthTransfer), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises (aeach, a “Transfer”), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed Transfer, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed Transfer, including a copy of any proposed assignment or sublease in its final form, and such other reasonable information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may not unreasonably withhold or delay its consent to such proposed assignment or subletting. Landlord shall not unreasonably withhold its consent to any proposed Transfer on the simultaneous sale, conveyance or transfer terms specified in the Assignment Notice and will respond to Tenant’s Assignment Notice within fifteen (15) business days following delivery by Tenant of the Assignment Notice and all of the Individual Properties (as defined items described in the Noteimmediately preceding sentence. If Landlord fails to timely deliver to Tenant notice of Landlord’s consent, or the withholding of consent, to a proposed Transfer within such 15-business day period, then Tenant may send a second (2nd) notice to Landlord, which notice must contain the following inscription, in bold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 22 OF LEASE -- FAILURE TO TIMELY RESPOND WITHIN FIVE (5) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL OF ASSIGNMENT OR SUBLEASE.” If Landlord fails to deliver notice of Landlord’s consent to, or the withholding of Landlord’s consent, to the proposed Transfer within five (5) business days following receipt of such second notice, Landlord shall be deemed to have approved the Transfer in question. If Landlord at any time timely delivers notice to Tenant of Landlord’s withholding of consent to a proposed Transfer, Landlord shall specify in reasonable detail in such notice the basis for such withholding of consent. Among other reasons, it shall be reasonable for Landlord to withhold its consent to a proposed Transfer in any of these instances: (1) the proposed subtenant or assignee is a governmental agency; (2) in their entirety on Landlord’s reasonable judgment, the use of the Premises by the proposed subtenant or assignee would entail any alterations that would lessen the value of the leasehold improvements in the Premises, or would require increased services by Landlord; (3) in Landlord’s reasonable judgment, the proposed subtenant or assignee is engaged in areas of scientific research or other business concerns that are controversial; (4) in Landlord’s reasonable judgment, the proposed subtenant or assignee lacks the creditworthiness to support the financial obligations it will incur under the proposed sublease; (5) in Landlord’s reasonable judgment, the character, reputation, or business of the proposed subtenant or assignee is inconsistent with the desired tenant-mix or the quality of other tenancies in the Project or is inconsistent with the type and quality of the nature of the Building; (6) Landlord has experienced previous defaults by or is in litigation with the proposed subtenant or assignee; (7) the use of the Premises by the proposed subtenant or assignee will violate any applicable Legal Requirement; or (8) the proposed subtenant or assignee is an entity with whom Landlord is negotiating to lease space in the Project. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice not to exceed $2,500 in each instance. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a single occasion subletting of any portion of the Premises to any entity controlling, controlled by or under common control with Tenant (each, a “Tenant Affiliate”) shall not be required (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Control Permitted Assignment”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to reasonably approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyassignment, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval parties shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject execute a consent to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to sublease or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all assignment in form and substance satisfactory content reasonably acceptable to LenderLandlord, includingand Tenant shall promptly provide Landlord with a copy of any such sublease or assignment. In addition, without limitationTenant shall have the right to assign this Lease, an endorsement or endorsements upon 30 days prior written notice to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title Landlord (to the Property is vested extent permitted by Legal Requirements to provide such advance notice but in the Buyer;
(viiany event as soon as permitted by Legal Requirements) Buyer shall furnishbut without obtaining Landlord’s prior written consent, if the Buyer to a corporation or other entity which is a corporationsuccessor-in-interest to Tenant, partnership by way of merger, consolidation or other entitycorporate reorganization, or by the purchase of all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification or substantially all of the signers to execute assets or the assumption ownership interests of the indebtedness secured herebyTenant provided that (i) such merger or consolidation, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entitiesor such acquisition or assumption, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of (A) the date of this Lease, or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease (b) Notwithstanding the foregoing provision of this Section a “Corporate Permitted Assignment”). Control Permitted Assignments and provided Borrower has not exercised its right Corporate Permitted Assignments are hereinafter referred to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salePermitted Transfers (defined below) will be permitted without Lender's prior consent, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms conditions regarding Permitted Transfers and conditions proposed transferees are satisfiedmet:
(i) no default at least 60 days prior to the proposed Permitted Transfer (except for any Permitted Transfer arising from the death of a natural person, in which case, not more than 30 days after the expiration death) Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;this Section.
(ii) there is no Event of Default under the Loan Documents executed by Borrower gives or any Affiliate of Borrower either when Lender written receives the notice or when the proposed Permitted Transfer occurs, and there has never been a monetary default under the Loan Documents beyond the applicable grace period (if any);
(iii) the proposed Permitted Transfer will not result in a violation of any of the terms covenants contained in the Section entitled, "ERISA COMPLIANCE" and tomorrow will deliver to Lender such documentation of such prospective Sale compliance as Lender requests in its sole discretion;
(iv) Borrower pays all of Lender's expenses relating to the Transfer, including Lender's attorneys' fees; and
(v) the transferee is not a person or entity with whom Lender has had adversarial dealings and is free from bankruptcy.
(b) Upon compliance with the conditions described in the preceding subsection, the following Transfers ("PERMITTED TRANSFERS") may occur without Lender's prior consent except as provided below and, without payment of any transfer fee except as specifically provided below:
(i) Transfers of membership interests in Borrower, provided that, subsequent to the Transfer, LTF Holdings remains as managing member and retains not less than thirty 51% of the equity and management control interests in Borrower.
(30ii) days before Transfers of membership interests in LTF Holdings, provided that subsequent to the Transfer, Sponsor remains as managing member and retains not less than 51 % of the equity and management control interest in LTF Holdings.
(iii) Transfers of ownership interests in Sponsor provided that:
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ (subject to the provisions contained below in this subsection) individually retains not less than his percentage interest as shareholder set forth in Schedule H to the Commitment, and the other Investors who are also employees of the Sponsor as of the date hereof as shown on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning Schedule H (the proposed transferee of the Property (hereinafter, "BuyerEMPLOYEE SHAREHOLDERS") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyeraggregate retain not less than a four percent (4.0%) interest as shareholders, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar except to the Property, the Buyer's financial strength, the Buyer's general business standing extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesEmployee Shareholders are diluted (but not more than proportionately) as the result of a purchase of new shares in Sponsor by contributors of capital raised in either the public or private markets; provided, however, thatthat ▇▇▇▇▇▇ ▇▇▇▇▇▇ may transfer up to five percent (5%) of his holdings in Sponsor in any calendar year i.e., notwithstanding five percent of his approximately 15% aggregate ownership interest, or 0.75% of the total interests in Sponsor in any calendar year, and such transfer right shall not be cumulative across calendar years) without the consent of 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;
(iiib) in the case of a proposed Transfer by any Investor owning an interest of more than 10% in Sponsor, such Transfer shall be subject to the consent of Lender, which shall be reasonably exercised; provided that such an Investor may transfer its interest without the consent of Lender to any of its affiliates or partners, or to the public in connection with a 1933 Act registration; and
(c) in the case of a proposed Transfer of 100% of the interests in Sponsor to one third party, or a " Qualifying Merger" with a third party, such transfer or "Qualifying Merger" shall be subject to the following additional conditions:
(1) the transferee or the parent of the transferee or the surviving entity in a merger has a net worth of at least $250,000,000;
(2) the transferee or the surviving entity in a merger is an institutional entity having a first-class business reputation and shall otherwise be satisfactory to Lender, and Lender agrees that Lender shall apply commercially reasonable standards in evaluating the transferee;
(3) in the case of a merger, the surviving entity has expressly assumed Sponsor's obligations under the Loan Documents to which it is a party and under any other documents encumbering the entire portfolio of properties securing the Loan (the "PORTFOLIO") that are essential to the on-going use, operation and management of the Portfolio;
(4) Borrower pays Lender, concurrently with the closing to Lender a transfer fee of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one 75/100 percent (1.0.75%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the SaleLoan;
(iv5) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to in the provisions case of Article 11 of the Notea merger, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to LenderLender from the surviving entity a substitute environmental indemnity and, without any cost if applicable, a substitute guaranty or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance surety instrument satisfactory to Lender, includingexecuted by a substitute indemnitor, without limitationguarantor or surety, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as satisfactory to Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member orin its sole discretion, in Lender's discretionwhich event, manager, of Buyer if Lender will release Borrower and indemnitor from any liability incurred in connection with events occurring solely after the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the BuyerPermitted Transfer;
(viii6) Buyer shall assume Sponsor enters into an agreement with a term of at least ten years to manage the obligations operation of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;Portfolio; and
(ix7) Buyer The exercise of this right shall furnish an opinion of counsel satisfactory terminate the right to Lender and its counsel
(A) that execute the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined transfer privilege provided in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month12.2(b)(vii), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored, handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its-final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grantor refuse such consent, in its sole discretion with respect to a proposed assignment, hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the Premises, or grant or refuse such consent, in its reasonable discretion with respect to a-proposed subletting of up to (together with all other then effective subleases) Notwithstanding 50% of the foregoing provisions Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (ii) terminate this SectionLease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord elects an Assignment Termination, Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer of other transfer. Tenant shall reimburse Landlord for all of the Individual Properties Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. (as defined in the Notec) in their entirety on Additional Conditions. As a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), condition to any person such assignment or entity provided that each of the following terms and conditions are satisfiedsubletting, whether or not Landlord’s consent is required, Landlord may require:
(i) no that any assignee or subtenant agree, in writing at the time of such assignment or subletting, that if Landlord gives such party notice that Tenant is in default after the expiration of notice or grace periods is then continuing hereunderunder this Lease, such party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments will be received by Landlord without any liability except to credit such payment against those due under the NoteLease, and any such third party shall agree to attom to Landlord or its successors and assigns should this Lease be terminated for any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesreason; provided, however, thatin no event shall Landlord or its successors or assigns be obligated to accept such attomment; and
(ii) A list of Hazardous Materials, notwithstanding Lender's agreement to consider certified by the foregoing factors in determining whether to give proposed assignee or withhold such approval, such approval shall be given or withheld based on what Lender determines sublessee to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs true and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured herebycorrect, which papers shall include certified the proposed assignee or sublessee intends to use, store, handle, treat, generate in or release or dispose of from the Premises, together with copies of all documents relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the organization proposed assignee or subtenant in the Premises or on the Project, prior to the proposed assignment or subletting, including, without limitation: permits; approvals; reports and formation correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Buyer and Project (provided, said installation of the entities, if anytanks shall only be permitted after Landlord has given its written consent to do so, which are partners consent may be withheld in Landlord’s sole and absolute discretion); and all closure plans or members of any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or under the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide Project for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency closure of any such entitytanks. Neither Tenant nor any such proposed assignee or subtenant is required, and (E) however, to provide Landlord with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderportion(s) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day containing information of a calendar month)proprietary nature which, to transfer or convey all in and of its interests in all of the Individual Properties themselves, do not contain a reference to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval Hazardous Materials or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andhazardous activities.
Appears in 1 contract
Sources: Lease Agreement (Iomai Corp)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender then Tenant shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion give Landlord notice (a "Sale"PRELIMINARY ASSIGNMENT NOTICE) after setting forth the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after on which Tenant proposes to offer the expiration of notice or grace periods is then continuing hereunderPremises, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before including the date on which tenant wishes to vacate for its own use such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee portion of the Property Premises (hereinafterthe "EFFECTIVE DATE"), "Buyer") as Lender would reasonably require in evaluating an initial extension or any portion thereof, to third parties. Landlord shall, within 10 business days of credit receipt of such Preliminary Assignment Notice elect to a borrower and pays exercise, or waive, its right to Lender a non-refundable application fee terminate this Lease with respect to the space described in the amount Preliminary Assignment Notice for the term of $2,500.00the assignment or sublease proposed in such Preliminary Assignment Notice, as of the Effective Date (an "ASSIGNMENT TERMINATION"). Lender If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Preliminary Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Preliminary Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Preliminary Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Effective Date with respect to the space described in such Preliminary Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease with respect to all or any portion of the premises in response to a Preliminary Assignment Notice shall be deemed to be Landlord's consent to the proposed assignment, subletting or other transfer, and Landlord hereby reserves and Tenant hereby acknowledges, Landlord's right to approve or disapprove any assignment or any subletting which individually or taken together with all then effective prior subleases, results in 50% or more of the proposed BuyerPremises being sublet, such approval not to be unreasonably withheld or delayedin its sole discretion. In determining whether to give Landlord shall grant or withhold its approval consent to any subletting which individually or taken together with all then effective prior subleases, results in less than 50% of the Premises being sublet, in its reasonable discretion. Except for Approved Transfers, at least 15 business days, but not more than 90 days, before the date the instrument effecting such assignment or subletting is to be executed and delivered (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing all of the relevant terms and conditions upon which Tenant is willing to assign the Lease or to sublet all or any portion of the Premises, including such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed Buyerassignment or sublease, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and such 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 information as Lender Landlord may deem reasonably appropriate;
(iii) Borrower pays Lendernecessary or appropriate to its consideration whether to grant its consent. Landlord may, concurrently by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice grant or refuse such consent, in its sole discretion with respect to any assignment or any subletting which individually or taken together with all then effective prior subleases, results in 50% or more of the closing Premises being sublet, or in its reasonable discretion with respect to any subletting which individually or taken together with all then effective prior subleases, results in less than 50% of such Sale, a non-refundable assumption fee in an amount equal to the Premises being sublet. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions of this Sectionproposed assignee or sublessee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the material economic terms hereof (other than a corresponding increase Premises, or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting of up to (together with all other then effective subleases) 50% of the event Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of assignment or sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authorityassignment or subletting), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice terminate this Lease with respect to the space described in the Assignment Notice as of the terms of such prospective Sale not less than thirty Assignment Date (30) days before the date on which such Sale is scheduled to close andan “Assignment Termination”). If Landlord elects an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord’s consent to the proposed assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice; provided, however, that such amount shall not exceed $5,000 per Assignment Notice. Notwithstanding the foregoing to the contrary, if Tenant has delivered to Landlord an Assignment Notice for a sublease which, with all other subleases, is greater than 50% of the Premises and Landlord does not exercise its right to terminate the Lease with respect to the space described in such Assignment Notice pursuant to Section 22(b)(ii) above, Landlord shall not unreasonably withhold its consent if such sublease is to a biotechnology or pharmaceutical company having an equity market capitalization of at least $100,000,000 as of the last day of such company’s most recent fiscal year; provided, however, that (X) the Security Deposit shall be increased to $500,000 prior to the Assignment Date, (Y) Landlord shall further have the right to review and approve or disapprove the proposed Buyerform of sublease prior to the Assignment Date, and (Z) Tenant shall reimburse Landlord up to $5,000 per Assignment Notice for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of such approval Assignment Notice. Notwithstanding the foregoing to the contrary, Landlord shall not exercise its right to be unreasonably withheld or delayed. In determining whether terminate the Lease pursuant to give or withhold its approval Section 22(b)(ii) above with respect to a sublease of up to a maximum of 10,800 square feet of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesPremises; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold that (A) such approval, such approval space shall be given or withheld based on what Lender determines subleased to a single tenant, (8) the rent and other consideration paid by such subtenant shall be commercially reasonable andat market rates for similar space in South San Francisco, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iiiC) Borrower pays Lender, concurrently with the closing term of such Salesublease shall expire on or before the expiration of the 3rd anniversary of the Commencement Date of this Lease, a non-refundable assumption fee in an amount equal (D) Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the Assignment Date, and (E) Tenant shall reimburse Landlord up to $5,000 per Assignment Notice for all of Landlord’s reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing its consideration of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous saleup to two (2) sales, conveyance conveyances or transfer of all transfers of the Individual Properties Property in its entirety (as defined in the Note) in their entirety on a single occasion (a "hereinafter, “Sale"”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to each such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's ’s deposits into the Escrow Fund with respect to Taxes in the event each such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedsatisfied with respect to each such Sale:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, Note or under any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "“Buyer"”) as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedwithheld. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's ’s experience and track record in owning and operating facilities similar to the Property, the Buyer's ’s financial strength, the Buyer's ’s general business standing and the Buyer's ’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's ’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' ’ fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all the indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NoteNote and, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's ’s title insurance policy, hazard insurance 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 ’s title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's ’s capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "“bankruptcy remote" ” entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
counsel (A) that the Buyer's ’s formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;; and
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's ’s obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Innovative Micro Technology Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially Landlord’s reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Sources: Sublease (Atossa Genetics Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and Except with respect to a Permitted Assignment, as defined below, if Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 10 business days, but not more than 45 days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such Saleinformation about the proposed assignee or sublessee, Lender shall not require a modification including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material economic terms hereof and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (other than a corresponding increase i) grant such consent (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), (ii) refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion, or (iii) terminate this Lease with respect to Taxes the space described in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each Assignment Notice as of the following terms and conditions are satisfied:
Assignment Date (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written an “Assignment Termination”). If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. It shall be reasonable for Landlord to withhold its consent to any assignment of this Lease or disapprove subletting of the Premises to an assignee or subtenant whose business or financial reputation is objectionable in Landlord’s reasonable judgment, or who is engaged in areas of scientific research or other business concerns that are controversial, in Landlord’s reasonable judgment, or who is at that time negotiating with Landlord for the lease of other space in the San Diego area. Landlord hereby covenants to respond in a timely manner to any Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially Landlord’s reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with its consideration of any Assignment Notice. In addition, Tenant shall have the Sale plus an amount equal right to one percent assign this Lease (1.0%) a “Permitted Assignment”), upon 10 business days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars three hundred million dollars ($25,000,000300,000,000.00) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than TwentyNet Multi-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andTenant Office 10933 North ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ & Nephew - Page 18
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions Section 1 of this SectionLock-Up Agreement, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance Shareholder may transfer all or transfer of all part of the Individual Properties Parent Shares as follows: (i) the Shareholder may transfer the Parent Shares as defined a bona fide gift or gifts, provided that the donee or donees thereof agree in writing to be bound by the Noterestrictions set forth herein, (ii) in their entirety if the Shareholder is an individual, the Parent Shares may be transferred either during the Shareholder’s lifetime or on a single occasion (a "Sale") after death by will or intestacy to any immediate family member or to any trust for the first anniversary direct or indirect benefit of the first day Shareholder or the immediate family of the first calendar month after the date hereof (Shareholder, provided that such immediate family member or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification trustee of the material economic terms hereof (other than a corresponding increase trust agrees in Borrower's deposits into the Escrow Fund with respect writing to Taxes in the event such Sale results in an increase in the real property tax assessment be bound by the applicable taxing authorityrestrictions set forth herein, and provided further that any such transfer does not involve a disposition for value, (iii) the Shareholder may transfer the Parent Shares to any entity over which the Shareholder has a controlling influence (alone or together with other shareholders of the Parent who are bound by an agreement similar to this Lock-Up Agreement), to any person company within the Skanditek Industriförvaltning AB group of companies or entity to any member of the ▇▇▇▇▇▇▇▇▇▇▇ family, provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice such entity or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require individual agrees in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not writing to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of bound by the proposed Buyerrestrictions set forth herein, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer if the Shareholder comes into serious financial difficulty (a) assumes and agrees considerable risk of bankruptcy), the Shareholder may, after consultation with the Parent regarding how such measure should be taken in order to pay all indebtedness secured hereby take the best interest of the shareholders of the Parent into account, transfer, use as and when due subject collateral for a loan to the provisions of Article 11 Shareholder or enter into any similar financial arrangement in respect of the Notenecessary number of the Parent Shares, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents public offer relating to the organization and formation Parent Shares will be launched either by a third party or by the Parent itself during the Lock-Up Period, the Shareholder may accept such offer for the Parent Shares held by the Shareholder, provided that the board of directors of the Buyer and of Parent has recommended the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andoffer.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "Assignment Date"), Tenant shall give Landlord a notice (the "Assignment Notice") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary of Assignment Date, any relationship between Tenant and the first day of the first calendar month after the date hereof (proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedof the proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice:
(i) no default after grant or refuse such consent, in its sole discretion with respect to a proposed assignment, hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the expiration of notice or grace periods is then continuing hereunder, under the NotePremises, or any grant or refuse such consent, in its reasonable discretion with respect to a proposed subletting of up to (together with all other then effective subleases) 50% of the Other Security Documents;
Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (ii) Borrower gives Lender terminate this Lease with respect to the space described in the Assignment Notice, as of the Assignment Date (an "Assignment Termination"). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the terms Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled option to close and, concurrently therewith, gives Lender all such information concerning terminate this Lease shall be deemed to be Landlord's consent to the proposed transferee assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, (i) Landlord's consent to an assignment of this Lease or a subletting of any portion of the Property (hereinafterPremises to any entity controlling, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender controlled by or under common control with Tenant shall not be required, provided that Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Noteassignment, and (bii) Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or concurrently with other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Sale, all in form and substance satisfactory to Lender, including, without limitation, an endorsement assets or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification ownership interests of the signers to execute the assumption of the indebtedness secured herebyTenant provided that (i) such merger or consolidation, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entitiesor such acquisition or assumption, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with GAAP) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) of Tenant as of the Effective Date, and (iii) such assignee shall have assumed, from and after the date of such Sale, agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof assignment (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall either (i) describe the proposed transfer in reasonable detail, or (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption anda "Permitted Assignment").
Appears in 1 contract
Sources: Lease Agreement (Equinix Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall not unreasonably withhold consent further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiv) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender One Thousand Five Hundred Dollars ($1,500) in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, Assignment Notice and/or its preparation or affiliation with, the Buyer, in the event of bankruptcy or insolvency review of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twentyconsent documents. Net Multi-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andTenant Laboratory 1616 Eastlake/Atossa - Page 16
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender shall not unreasonably withhold consent other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the material economic terms hereof (other than a corresponding increase Premises, or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting of up to (together with all other then effective subleases) 50% of the event Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authoritysubletting), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice terminate this Lease with respect to the space described in the Assignment Notice, as of the terms of such prospective Sale not less than thirty Assignment Date (30) days before the date on which such Sale is scheduled to close andan "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord's consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the BuyerLandlord's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with its consideration of any Assignment Notice. In addition, Tenant shall have the Sale plus an amount equal right to one percent (1.0%) assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles, consistently applied ("GAAP") of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) of Tenant as of the Effective Date, (iii) such assignee shall have assumed, from and after the date of such Sale, agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)assignment, and (civ) include evidence reasonably satisfactory the Rent to Lender that the applicable provisions of be paid by such assignee to Landlord pursuant to this Lease will be treated as "rents from real property" under Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all 856 of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andInternal Revenue Code (a "PERMITTED ASSIGNMENT").
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salea Permitted Transfer may occur without Lender’s prior consent, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedmet:
(i) no default after at least 45 days prior to the expiration proposed Permitted Transfer, ▇▇▇▇▇▇▇▇ delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsthis Section;
(ii) there is no default under the Loan Documents either when Lender receives the notice or when the proposed Permitted Transfer occurs and all payment obligations of Borrower gives to Lender written notice have been paid through the date of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriatePermitted Transfer;
(iii) Borrower pays Lender, concurrently with the closing proposed Permitted Transfer will not result in a violation of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) any of the then outstanding principal balance covenants or representations contained in the Sections entitled “ERISA Compliance”, “Anti-Terrorism” or “Special Purpose Entity Representations, Warranties and Covenants” and Borrower will deliver to Lender such documentation of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies compliance as Lender requests in connection with the Saleits sole discretion;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as when ▇▇▇▇▇▇ receives the notice and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Saleproposed Permitted Transfer occurs, the Buyer executestransferee has never been an adverse party to Lender in any litigation to which Lender was a party; the transferee has never defaulted on a loan from Lender or on any contract or other agreement with Lender; and the transferee has never threatened litigation against Lender (for purposes of this subsection, without any cost or expense to “transferee” includes the transferee’s constituent entities at all levels and “Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption” includes Lender’s subsidiaries);
(v) Borrower and pays all of ▇▇▇▇▇▇’s expenses relating to the Buyer executeTransfer, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lenderincluding ▇▇▇▇▇▇’s attorneys’ fees;
(vi) Borrower delivers ▇▇▇▇▇▇ is satisfied that the Property will continue to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance be managed by a property manager satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer▇▇▇▇▇▇;
(vii) Buyer shall furnishOn the date of the proposed Permitted Transfer, if so requested by ▇▇▇▇▇▇, a Uniform Commercial Code search report is delivered to Lender relating to (A) the Buyer is a corporationtransferee, partnership (B) any predecessor entity that transferee merged with or other entity, all appropriate papers evidencing the Buyer's capacity and good standinginto, and the qualification (C) any entity where transferee acquired substantially all of its assets, in each case satisfactory to Lender and indicating that ▇▇▇▇▇▇’s security interest in such portion of the signers Property as is perfected by filing a financing statement is prior to execute all other security interests reflected in the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;report; and
(viii) Buyer shall assume On the obligations date of Borrower under any management agreements pertaining to the Property or assign to proposed Permitted Transfer, Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel receives certifications, satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated proposed Permitted Transfer complies with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;Section.
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection Upon compliance with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i)the preceding subsection, the following Transfers (iv)the “Permitted Transfers”) may occur without Lender’s prior consent:
(i) any Transfer of direct or indirect ownership interests in Borrower; provided that, subsequent to the Transfer NERA (v)NERA in such capacity, (vi), (vii), (viii), (ixthe “Key Principal”) retains Control of ▇▇▇▇▇▇▇▇ and (x) are satisfied. Borrower shall, owns not less than thirty twenty five percent (3025%) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer economic interests in reasonable detail, Borrower;
(ii) include evidence reasonably satisfactory to Lender any Transfer of publicly traded shares in NERA, provided that following such Transfer, (A) ▇▇▇▇▇▇ ▇▇▇▇▇ (i.e. the proposed transferee is an Affiliate Vice President of the Manager as of the date of this Mortgage), ▇▇▇▇▇▇ ▇▇▇▇▇ (i.e. the President of the Manager as of the date of this Mortgage) and/or one or more Family Members shall retain Control of NERA and (B) NERA shall retain Control of Borrower and that such Key Principal has a net worth of own not less than Twentytwenty-Five Million Dollars five percent ($25,000,000), and (c25%) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations economic interests in Borrower. As used herein, the term “Family Member” means a spouse, child or grandchild of Guarantor under said ▇▇▇▇▇▇ ▇▇▇▇▇, said ▇▇▇▇▇▇ ▇▇▇▇▇ or any trust established for the Environmental Indemnity and benefit of any one or more of the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andforegoing;
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing the foregoing provisions proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, current financial statements for the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in substantially its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent, Landlord shall provide written notice to Tenant within 5 business days after receipt of an Assignment Notice if Landlord reasonably requires information not unreasonably withhold included in the Assignment Notice. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, or (ii) refuse such consent, in its reasonable discretion. No failure of Landlord to deliver a timely notice in response to the Assignment Notice shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer, unless Tenant has delivered a second notice to Landlord stating that Landlord has failed to respond within the original 15 business day period and Landlord fails to respond within 5 days of receipt of such second notice. Tenant shall reimburse Landlord for all of the Individual Properties (as defined Landlord’s reasonable out-of-pocket expenses in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary connection with its consideration of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Saleany Assignment Notice, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit up to a borrower and pays to Lender a non-refundable application fee in the maximum amount of $2,500.002,000.00. Lender Notwithstanding the foregoing, Tenant shall have the right to approve assign this Lease or disapprove the proposed Buyer, such approval not to be unreasonably withheld sublease all or delayed. In determining whether to give or withhold its approval a portion of the proposed BuyerPremises, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar upon 20 days prior written notice to the PropertyLandlord but without obtaining Landlord’s prior written consent, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Noteany entity which controls, and is controlled by, or is under common control with, Tenant, or (b) prior to a corporation or concurrently with other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Saleassets or the ownership interests of Tenant, 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 insuring that fee simple title upon a deemed assignment pursuant to the Property is vested in the Buyer;
second sentence of Section 22(a), provided that (viii) Buyer shall furnishsuch merger or consolidation, if the Buyer is a corporationor such acquisition or assumption or transfer, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a legitimate business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) abovepurpose of transferring the Lease, (Bii) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of not less than Twenty-Five Million Dollars the assignee or sublessee is at least equal to the greater of ($25,000,000x) shall have assumed, from and after the net worth of Tenant as of the date of this Lease, and (y) the net worth of Tenant as of the date immediately prior to such Saleassignment or sublease, and (iii) in the case of an assignment, such assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof assignment (or the date hereof if dated the first day of a calendar month“Permitted Transfer”), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender shall not unreasonably withhold consent other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the material economic terms hereof (other than a corresponding increase Premises, or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting of up to (together with all other then effective subleases) 50% of the event Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authoritysubletting), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice terminate this Lease with respect to the space described in the Assignment Notice, as of the terms of such prospective Sale not less than thirty Assignment Date (30) days before the date on which such Sale is scheduled to close andan "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord's consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the BuyerLandlord's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with its consideration of any Assignment Notice. In addition, Tenant shall have the Sale plus an amount equal right to one percent (1.0%) assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles, consistently applied ("GAAP")) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) of Tenant as of the Effective Date, (iii) such assignee shall have assumed, from and after the date of such Sale, agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)assignment, and (civ) include evidence reasonably satisfactory the Rent to Lender that the applicable provisions of be paid by such assignee to Landlord pursuant to this Lease will be treated as "rents from real property" under Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all 856 of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andInternal Revenue Code (a "PERMITTED ASSIGNMENT"). Net Single-Tenant Laboratory 10505 Roselle Street/Protarch, Inc. - Page 16
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding In connection with any proposed Permitted Transfer by the foregoing provisions of this SectionTransferee, Lender the Transferee shall not unreasonably withhold consent deliver to Loctite no later than 30 days prior to the simultaneous sale, conveyance or transfer of all of the Individual Properties Transfer Date (as defined in the Notebelow) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of such proposed Permitted Transfer (the terms "Transfer Notice") for such proposed Permitted Transfer setting forth (A) the number of such prospective Sale not less than thirty Common Shares proposed to be transferred, (30B) days before the identity of the proposed transferee (the "Proposed Transferee"), including the Beneficial Owners thereof to the extent known or reasonably determinable by the Transferee, and (C) the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee Permitted Transfer is to be consummated (the "Transfer Date") and (ii) an agreement substantially in the form of Exhibit A-1 to the Rights Agreement, duly and validly executed on behalf of the Property Proposed Transferee (hereinafterthe "Transferee Agreement"). Upon receipt by Loctite of the Transferee Agreement duly executed and delivered by the Proposed Transferee, Loctite shall duly execute and deliver the Transferee Agreement.
(b) As soon as practicable after receipt of the Transfer Notice, the Directors who are neither nominees or representatives of the Transferor or any Affiliate or Associate of the Transferor nor officers or employees of Loctite (each an "BuyerUnaffiliated Director") shall evaluate whether the Proposed Transferee is an Adverse Person. The Transferee shall provide the Unaffiliated Directors with any information within its control requested by them to facilitate their evaluation, as Lender would reasonably require in evaluating an initial extension of credit soon as practicable after any request for information is made.
(c) Subject to Section 2(d) hereof, a borrower and pays to Lender a non-refundable application fee proposed Permitted Transfer may be consummated on the Transfer Date as set forth in the amount of $2,500.00. Lender Transfer Notice and the Transferee Agreement related to such proposed Permitted Transfer unless the Unaffiliated Directors shall have determined that the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar Proposed Transferee is an Adverse Person no later than five days prior to the Property, Transfer Date for such proposed Permitted Transfer provided that the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience Transferee complies with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors its obligations 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;
(iiiSections 2(a) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior hereof.
(d) With respect to or concurrently with any proposed Permitted Transfer, the closing Proposed Transferee shall be deemed to be an Adverse Person for purposes of the Rights Agreement, unless there is at least one Director that is an Unaffiliated Director during the period from and including the date Loctite receives a Transfer Notice in respect of such Saleproposed Permitted Transfer to and including the Transfer Date for such proposed Permitted Transfer. Except as required by applicable law, Loctite covenants and agrees that it will not take any action to cause there to be fewer than one Unaffiliated Director on the Buyer executes, without Board at any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;time.
(ve) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all Notwithstanding anything 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 insuring that fee simple title Agreement to the Property is vested in the Buyer;
(vii) Buyer shall furnishcontrary, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets no transferee of any other entity having an interest in, or affiliation with, Common Shares from the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender Transferee shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor rights under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAgreement.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined in below), then at least 15 business days, but not more than 45 business days, before the Notedate Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) in their entirety on a single occasion (a "Sale") after containing such information about the first anniversary proposed assignee or sublessee, including the proposed use of the first day Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first calendar month proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the date hereof Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its reasonable discretion; or the date hereof if dated the first day of a calendar month(iii) and with respect to such Sale, Lender shall not require a modification any assignment or sublease that would result in more than 50% of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into Premises being subleased for substantially the Escrow Fund remainder of the Term, terminate this Lease with respect to Taxes the space described in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each Assignment Notice as of the following terms and conditions are satisfied:
Assignment Date (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written an “Assignment Termination”). If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after ▇▇▇▇▇▇▇▇’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. It shall be reasonable for Landlord to be unreasonably withheld or delayed. In determining whether to give or withhold its approval consent, among other reasons, in any of the following instances: (A) the business or financial reputation of the proposed Buyerassignee or sublessee, Lender shall consider or the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's business or financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing reputation of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) any of the then outstanding principal balance of the Note. Borrower also paysrespective principals or officers thereof, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies is objectionable in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) aboveLandlord’s reasonable judgment, (B) the proposed assignee or sublessee is engaged in areas of scientific research or other business concerns that the assumption are controversial, in Landlord’s reasonable judgment, or its proposed use of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their termsPremises will violate any applicable Legal Requirement, (C) the proposed assignee or sublessee is at that time negotiating with Landlord or an affiliate thereof for the Buyer and any entity which is a controlling stockholder, member or general partner lease of Buyer, have been duly organized, and are other space in existence and good standingthe Project, (D) if required by Lender, that the assets of the Buyer will proposed assignee or sublessee does not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (determined in accordance with GAAP (as determined by Lender) defined below)), as of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Salethe Transfer, all at least equal to the greater of (x) the obligations net worth of Guarantor under the Environmental Indemnity and the Guaranty Tenant as of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
this Lease (xiibased on the financial statements submitted by Tenant to Landlord prior to execution of the Lease), or (y) Borrower's obligations under the contract net worth of sale pursuant to which the Sale is proposed to occur shall expressly be subject Tenant immediately prior to the satisfaction of Transfer Date (based on the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties financial statements then most recently submitted by Tenant pursuant to Section 8.4(a40(c) abovebelow or if Tenant is publicly traded, Borrower shall be permitted, after as provided in Tenant’s then most recent financial statements filed with the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar monthSecurities and Exchange Commission), or otherwise lacks the creditworthiness to transfer support the financial obligations it would incur under the proposed assignment or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i)sublease, (iv), (v), (vi), (vii), (viii), (ixE) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andassignee or
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord shall, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice grant or refuse such consent, in its sole discretion with respect to a proposed assignment, hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the Premises (a "MAJOR SUBLETTING"), or grant or refuse such consent, in its reasonable discretion with respect to a proposed subletting other than a Major Subletting (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting). Notwithstanding the foregoing, (a) Notwithstanding following a Reorganization Assignment (as defined below) or (b) if neither the foregoing provisions of this Sectionoriginal Landlord nor a person affiliated with the original Landlord is the CONFIDENTIAL - DO NOT COPY Landlord under the Lease, Lender then in either case Landlord shall not unreasonably withhold grant or refuse its consent to the simultaneous sale, conveyance or transfer subletting of all or any portion of the Individual Properties (as defined Premises in the Note) in their entirety on its reasonable discretion. Upon receiving any Assignment Notice for any proposed assignment, Major Subletting or other subletting which is for a single occasion (a "Sale") after the first anniversary period of more than 50% of the first day remaining balance of the first calendar month after Term as of the date hereof (or the date hereof if dated the first day of a calendar month) and such proposed subletting is to commence, Landlord may terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase an "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in Borrower's deposits into full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the Escrow Fund term and estate herein granted, shall terminate as of the Assignment Date with respect to Taxes the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord's consent to the event such Sale results proposed assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, Landlord's consent to an increase in assignment of this Lease or a subletting of any portion of the real property tax assessment by the applicable taxing authority), Premises to any person entity controlling, controlled by or entity under common control with Tenant shall not be required, provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyerassignment, such which approval shall not to be unreasonably withheld or delayedwithheld. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyernot in Landlord's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an reasonable opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles ("GAAP")) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant's most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant assignment (such assignment is herein referred to Section 8.4(a) above, Borrower shall be permitted, after as a "REORGANIZATION ASSIGNMENT"). Each assignment or subletting described in the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of two immediately preceding sentences is referred to herein as a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key PrincipalPERMITTED ASSIGNMENT.") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and
Appears in 1 contract
Sources: Lease Agreement (Acusphere Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salePermitted Transfers (defined below) will be permitted without Lender's prior consent, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms conditions regarding Permitted Transfers and conditions proposed transferees are satisfiedmet:
(i) no default at least 60 days prior to the proposed Permitted Transfer (except for any Permitted Transfer arising from the death of a natural person, in which case, not more than 30 days after the expiration death) Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;this Section.
(ii) there is no Event of Default under the Loan Documents executed by Borrower gives or any Affiliate of Borrower either when Lender written receives the notice or when the proposed Permitted Transfer occurs, and there has never been a monetary default under the Loan Documents beyond the applicable grace period (if any);
(iii) the proposed Permitted Transfer will not result in a violation of any of the terms covenants contained in the Section entitled, "ERISA COMPLIANCE" and Borrower will deliver to Lender such documentation of such prospective Sale compliance as Lender requests in its sole discretion;
(iv) Borrower pays all of Lender's expenses relating to the Transfer, including Lender's attorneys' fees; and
(v) the transferee is not a person or entity with whom Lender has had adversarial dealings and is free from bankruptcy.
(b) Upon compliance with the conditions described in the preceding subsection, the following Transfers ("PERMITTED TRANSFERS") may occur without Lender's prior consent except as provided below and, without payment of any transfer fee except as specifically provided below:
(i) Transfers of membership interests in Borrower, provided that, subsequent to the Transfer, LTF Holdings remains as managing member and retains not less than thirty 51% of the equity and management control interests in Borrower.
(30ii) days before Transfers of membership interests in LTF Holdings, provided that subsequent to the Transfer, Sponsor remains as managing member and retains not less than 51% of the equity and management control interest in LTF Holdings.
(iii) Transfers of ownership interests in Sponsor provided that:
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ (subject to the provisions contained below in this subsection) individually retains not less than his percentage interest as shareholder set forth in Schedule H to the Commitment, and the other Investors who are also employees of the Sponsor as of the date hereof as shown on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning Schedule H (the proposed transferee of the Property (hereinafter, "BuyerEMPLOYEE SHAREHOLDERS") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyeraggregate retain not less than a four percent (4.0%) interest as shareholders, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar except to the Property, the Buyer's financial strength, the Buyer's general business standing extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesEmployee Shareholders are diluted (but not more than proportionately) as the result of a purchase of new shares in Sponsor by contributors of capital raised in either the public or private markets; provided, however, thatthat ▇▇▇▇▇▇ ▇▇▇▇▇▇ may transfer up to five percent (5%) of his holdings in Sponsor in any calendar year (i.e., notwithstanding five percent of his approximately 15% aggregate ownership interest, or 0.75% of the total interests in Sponsor in any calendar year, and such transfer right shall not be cumulative across calendar years) without the consent of 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;
(iiib) in the case of a proposed Transfer by any Investor owning an interest of more than 10% in Sponsor, such Transfer shall be subject to the consent of Lender, which shall be reasonably exercised; provided that such an Investor may transfer its interest without the consent of Lender to any of its affiliates or partners, or to the public in connection with a 1933 Act registration; and
(c) in the case of a proposed Transfer of 100% of the interests in Sponsor to one third party, or a "Qualifying Merger" with a third party, such transfer or "Qualifying Merger" shall be subject to the following additional conditions:
(1) the transferee or the parent of the transferee or the surviving entity in a merger has a net worth of at least $250,000,000;
(2) the transferee or the surviving entity in a merger is an institutional entity having a first-class business reputation and shall otherwise be satisfactory to Lender, and Lender agrees that Lender shall apply commercially reasonable standards in evaluating the transferee;
(3) in the case of a merger, the surviving entity has expressly assumed Sponsor's obligations under the Loan Documents to which it is a party and under any other documents encumbering the entire portfolio of properties securing the Loan (the "PORTFOLIO") that are essential to the on-going use, operation and management of the Portfolio;
(4) Borrower pays Lender, concurrently with the closing to Lender a transfer fee of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one 75/100 percent (1.0.75%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the SaleLoan;
(iv5) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to in the provisions case of Article 11 of the Note-a merger, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to LenderLender from the surviving entity a substitute environmental indemnity and, without any cost if applicable, a substitute guaranty or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance surety instrument satisfactory to Lender, includingexecuted by a substitute indemnitor, without limitationguarantor or surety, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as satisfactory to Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member orin its sole discretion, in Lender's discretionwhich event, manager, of Buyer if Lender will release Borrower and indemnitor from any liability incurred in connection with events occurring solely after the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the BuyerPermitted Transfer;
(viii6) Buyer shall assume Sponsor enters into an agreement with a term of at least ten years to manage the obligations operation of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;Portfolio; and
(ix7) Buyer The exercise of this right shall furnish an opinion of counsel satisfactory terminate the right to Lender and its counsel
(A) that execute the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined transfer privilege provided in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month12.2(b)(vii), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Sources: Open End Leasehold Mortgage (Life Time Fitness Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises (agenerally, a "TRANSFER"), then at least 15 business days, but not more than 30 business days, before the date Tenant desires the Transfer to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a Notice (the "ASSIGNMENT NOTICE") Notwithstanding containing such information about the foregoing provisions of this Sectionproposed transferee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used or stored in the NotePremises, the Assignment Date, any relationship between Tenant and the proposed transferee, and all material terms and conditions of the proposed Transfer, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving Notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant or refuse such consent, in their entirety on its sole and absolute discretion, with respect to any Transfer other than a single occasion straightforward sublease of not more than 3,000 square feet of the Premises (a "SaleMINOR SUBLEASE") after the first anniversary of the first day of the first calendar month after the date hereof (), or the date hereof if dated the first day of a calendar month) and grant or refuse such consent, in its reasonable discretion, with respect to such Salea Minor Sublease, Lender shall not require a modification of the material economic terms hereof or (other than a corresponding increase in Borrower's deposits into the Escrow Fund ii) terminate this Lease with respect to Taxes the space described in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)Assignment Notice, to any person or entity provided that each as of the following terms and conditions are satisfied:
Assignment Date (i) no default after the expiration of notice or grace periods is then continuing hereunderan "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove the proposed Buyer, such approval not withdraw its Assignment Notice by Notice to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing Landlord of such Saleelection within 5 days after Landlord's Notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, a non-refundable assumption fee this Lease shall continue in an amount equal to all out-of-pocket costs full force and expenseseffect. If Tenant does not withdraw such Assignment Notice, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingLease, and the qualification term and estate herein granted, shall terminate as of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) Assignment Date with respect to the space described in such other matters as Lender may reasonably request;
(x) Lender Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) be deemed to be Landlord's consent to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) proposed Transfer. Tenant shall have assumed, from and after the date of such Sale, reimburse Landlord for all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all reasonable out-of-pocket expenses, including without limitation, reasonable attorney's feesup to a maximum of $1,000.00, incurred by Lender Landlord in connection with the transfer and all costs and expenses its consideration of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salea Permitted Transfer may occur without Lender’s prior consent, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedmet:
(i) no default after at least forty-five (45) days prior to the expiration proposed Permitted Transfer, Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsthis Section;
(ii) there is no Event of Default under the Loan Documents either when Lender receives the notice or when the proposed Permitted Transfer occurs and all payment obligations of Borrower gives to Lender written notice have been paid through the date of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriatePermitted Transfer;
(iii) the proposed Permitted Transfer will not result in a violation of any of the covenants or representations contained in the Sections entitled “ERISA Compliance”, “Anti-Terrorism” or “Special Purpose Entity Representations, Warranties and Covenants” and Borrower will deliver to Lender such documentation of compliance as Lender reasonably requests;
(iv) when Lender receives the notice and when the proposed Permitted Transfer occurs, the transferee has never been an adverse party to Lender in any litigation to which Lender was a party; the transferee has never had a monetary default under any investment with Lender; and the transferee has never threatened litigation against Lender (for purposes of this subsection, “transferee” includes the transferee’s constituent entities at all levels and “Lender” includes Lender’s subsidiaries);
(v) Borrower pays all of Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all ’s reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject relating to the provisions of Article 11 of the NoteTransfer, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to including Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender’s attorneys’ fees;
(vi) Borrower delivers Lender is satisfied that the Property will continue to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance be managed by a property manager satisfactory to Lender, including, without limitation, Lender or will be self-managed by Borrower or an endorsement or endorsements to Lender's title insurance policy insuring the lien Affiliate of this Security Instrument insuring that fee simple title to the Property is vested Borrower in the Buyer;accordance with Section 4.2; and
(vii) Buyer shall furnishOn the date of the proposed Permitted Transfer, if so requested by Lender, a Uniform Commercial Code search report is delivered to Lender relating to (A) the Buyer is a corporationtransferee, partnership (B) any predecessor entity that transferee merged with or other entity, all appropriate papers evidencing the Buyer's capacity and good standinginto, and the qualification (C) any entity where transferee acquired substantially all of its assets, in each case satisfactory to Lender and indicating that Lender’s security interest in such portion of the signers Property as is perfected by filing a financing statement is prior to execute all other security interests reflected in the assumption report.
(b) The following Transfers (the “Permitted Transfers”) may occur without Lender’s prior consent:
(i) a one-time sale (a “One-Time Sale”) of the indebtedness secured herebyProperty to an unaffiliated bona fide purchaser, which papers shall include certified copies of provided that the following conditions are met:
(A) all documents relating to the organization and formation of the Buyer and of conditions set forth in the entities, if any, which are partners Section 12.2(a) above have been or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall will be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyerconcurrently satisfied;
(viiiB) Buyer shall assume the transferee has a net worth of at least $500,000,000.00;
(C) the transferee is an Institutional Investor or a developer or manager of first-class commercial real estate comparable to the Property with a high-quality reputation and substantial experience;
(D) the transferee has expressly assumed the obligations of Borrower under any management agreements pertaining the Property Documents and under the Loan Documents;
(E) subsequent to the One-Time Sale, the Property or assign is managed by a property manager satisfactory to Lender;
(F) Lender, in its sole discretion, may require evidence satisfactory to it that immediately prior to the One-Time Sale and at least twelve (12) months subsequent to the One-Time Sale, the Property support an aggregate loan to value ratio no greater than seventy percent (70%), with the value of the Property to be determined by the purchase price to be paid therefore pursuant to an executed purchase and sale agreement with a bona fide third party purchaser, and a Debt Service Coverage of not less than 1.40x; provided however, Borrower may, in its sole discretion, prepay a portion of the Principal as part of the One-Time-Sale in order to satisfy the foregoing underwriting conditions, provided that such prepayment complies with the requirements of Section 2 of this Loan Agreement;
(G) Borrower pays to Lender as additional security any new management agreement entered into a transfer fee of not less than one-half of one percent (0.5%) of the outstanding Principal (after prepayment, if any, under clause (F) above) and a reasonable processing fee relating to the transfer; and
(H) Lender approves in its sole discretion a substitute guarantor and substitute indemnitor in connection with such Sale;the Guaranty and Environmental Indemnity, and Borrower delivers to Lender substitute guaranty and indemnity instruments reasonably satisfactory to Lender.
(ixii) Buyer shall furnish a Transfer by any of the holders of the direct or indirect interests in any of the Restricted Parties (each an opinion of counsel satisfactory to Lender and its counsel“Interest Holder”), provided the following conditions are met:
(A) that the Buyer's formation documents provide for condition set forth in the matters described Section 12.2(a)(iii) is satisfied and, in subparagraph connection with the Transfer of any direct (viibut not indirect) aboveinterest in any of the Restricted Parties, the condition set forth in the Section 12.2(a)(ii) is satisfied (but not any other conditions set forth in Section 12.2(a)); and
(B) that after taking into account any prior Transfers pursuant to this Section 12.2(b)(ii), whether to the assumption proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control of any of the indebtedness evidenced hereby has been duly authorizedRestricted Parties.
(iii) any Transfer or issuance, executed and deliveredfrom time to time, and that of any securities or other interests in IPT, or any operating partnership units in IPOP or any subsidiary thereof owning an interest in but not constituting a Restricted Party, provided the Note, this Security Instrument, following conditions are met:
(A) the assumption agreement and condition set forth in the Other Security Documents are valid, binding and enforceable against Section 12.2(a)(iii) is satisfied (but not any other conditions set forth in Section 12.2(a));
(B) IPT remains the Buyer in accordance with their terms, sole general partner of IPOP; and
(C) that if, after such Transfer or issuance, any person or coordinated group (other than any person or entity acting merely as a trustee, fiduciary or similar agency capacity for one or more employee benefit plans) entitled to vote for members of the Buyer and any entity which is board of directors of IPT on a controlling stockholderfully-diluted basis becomes the beneficial owner, member directly or general partner indirectly, of Buyer, have been duly organizedmore than twenty percent (20%) of the common stock of IPT or the operating units of IPOP (other than IPT owning such units), and the applicable entity is not then listed on any National Securities Exchange, then Borrower shall provide Lender with written notice within fifteen (15) days after Borrower itself receives notice of such change in ownership.
(iv) any Transfer by operation of law resulting from merger, consolidation, or non-bankruptcy reorganization of IPT or IPOP, or the listing of the securities in IPT or IPOP on a National Securities Exchange, or the conversion of IPT or IPOP (or any subsidiary thereof) into an “open end fund”, provided the following conditions are met:
(A) the condition set forth in existence and good standingthe Section 12.2(a)(iii) is satisfied (but not any other conditions set forth in Section 12.2(a));
(B) IPOP continues to (1) maintain Control, directly or indirectly of the Restricted Parties, (D2) be the “Guarantor” and “Indemnitor” under the terms of the Guaranty and Environmental Indemnity, respectively, and (3) maintains a Net Worth of not less than $500,000,000 or if any of the foregoing requirements in clauses (1), (2) or (3) are not satisfied, then (W) Lender shall be given at least thirty (30) days prior written notice of such event, (X) one or more substitute guarantors reasonably acceptable to Lender having an aggregate Net Worth of not less than $500,000,000 shall have assumed all of the liabilities and obligation of IPOP under the existing Loan Documents or executed and delivered to Lender such replacements for the Guaranty and Environmental Indemnity as required by Lender, that (Y) such replacement guarantor(s) deliver to Lender a standard formation, execution and enforceability opinion with respect to the assets assumption of IPOP’s liabilities under the Buyer will not be consolidated with Loan Documents or the assets of any other entity having an interest in, or affiliation with, the Buyer, replacement Guaranty and Environmental Indemnity in the event of bankruptcy or insolvency of any such entityform and substance reasonably acceptable to Lender, and (EZ) with respect to such other matters as Lender may reasonably request;
(x) Lender the Borrower shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) paid to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, Lender all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all ’s reasonable out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies (including reasonable attorney’s fees).
(v) provided the condition set forth in connection with the SaleSection 12.2(a)(iii) so long as the terms and is satisfied (but not any other conditions set forth in Sections 8.4(a)(iSection 12.2(a)), any Transfer of shares or other securities of IPT, IPOP, or any of their affiliates if such shares or securities are listed on a National Securities Exchange.
(ivvi) provided the condition set forth in the Section 12.2(a)(iii) is satisfied (but not any other conditions set forth in Section 12.2(a)), (v)any Transfer by an Interest Holder to an entity that is owned by, (vi)either directly or indirectly, and under the Control of, the transferring Interest Holder, IPT or IPOP.
(vii), (viii), (ix) For the purposes of Sections 12.2(b)(ii) and (x12.2(b)(iv) are satisfied. Borrower shallabove, not less than thirty (30) days before “Control” shall mean, with respect to any such transferentity, deliver to Lender written notice of such transfer which notice shall either (i) describe the proposed transfer in reasonable detailownership, directly or indirectly, of forty-nine percent (49%) or more of all equity interests therein, and/or (ii) include evidence reasonably satisfactory the possession, directly or indirectly, of the power to Lender that direct or cause the proposed transferee is an Affiliate direction of Borrower the management and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date policies of such transferentity, all through the ownership of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andvoting securities, by contract or otherwise.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its substantially final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iv) in the case where the sublease is for most of the remaining Term of this SectionLease then in effect, Lender and except with respect to a Permitted Assignment, terminate this Lease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer of other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice, not to exceed $2,500 per Assignment Notice. Notwithstanding the Individual Properties (as defined in foregoing, Landlord consent to an assignment of this Lease or a subletting of any portion of the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord (unless prohibited by Legal Requirements in which case promptly thereafter) but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee or, if applicable, successor entity after taking into account the merger is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Saleassignee or, if applicable, successor entity shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant assignment (a “Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted Assignments are hereinafter referred to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 1 contract
Permitted Transfers. Notwithstanding any other terms of this Article 14, Tenant may, without ▇▇▇▇▇▇▇▇’s consent pursuant to Section 14.1, assign this Lease or sublease all or part of the Premises to: (a) Notwithstanding the foregoing provisions a creditworthy affiliate of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined Tenant in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (bona fide transaction undertaken for other than a corresponding increase the avoidance of ▇▇▇▇▇▇’s liabilities and responsibilities hereunder; (b) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in Borrower's deposits into the Escrow Fund which or with respect to Taxes which Tenant, or its corporate successors or assigns, is merged or consolidated, in the event such Sale results in an increase in the real property tax assessment by the accordance with applicable taxing authority)statutory provisions governing merger and consolidation of business entities, to any person or entity provided that each of the following terms and conditions are satisfied:
so long as: (i) no default after Tenant's obligations hereunder are assumed by the expiration of notice entity surviving such merger or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
created by such consolidation; and (ii) Borrower gives Lender written notice of the terms Tangible Net Worth of such prospective Sale surviving or created entity is, after the effective consummation of such merger or consolidation, not less than the Tangible Net Worth of Tenant as of the date hereof; or (c) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant's assets, so long as such entity's Tangible Net Worth after such acquisition is not less than the Tangible Net Worth of Tenant as of the date hereof; provided that in each instance (1) Tenant notifies Landlord at least thirty (30) days before prior to the effective date of any such assignment or sublease (provided such notice and disclosure does not violate applicable laws or the terms of an agreement with the acquiring entity, in which event such notice and disclosure shall be made as soon as reasonably possible, but in no event more than fifteen (15) business days after the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property Permitted Transfer (hereinafteras defined below)) and promptly supplies Landlord with any documents or information reasonably requested by Landlord regarding such assignment or sublease or the Permitted Transferee (as defined below), "Buyer"including current financial statements of the Permitted Transferee certified by an officer, partner or owner thereof and reasonable documentation that the Permitted Transfer satisfies the requirements of this Section 14.7, (2) as Lender would reasonably require Tenant is not in evaluating an initial extension of credit default, beyond the applicable notice and cure period, (3) the transferee is qualified to a borrower and pays to Lender a non-refundable application fee conduct business in the amount State of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NoteCalifornia, and (b4) prior such assignment or sublease is not a subterfuge by Tenant to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 avoid its obligations under this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the BuyerLease. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the BuyerTenant shall, in the event of bankruptcy or insolvency of any such entityPermitted Transfer, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from remain liable for the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal performance of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under Tenant hereunder, or if Tenant no longer thereafter exists because of a merger, consolidation, or acquisition, the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur surviving or acquiring entity shall expressly be subject assume in writing (in form and content satisfactory to Landlord) the satisfaction obligations of Tenant hereunder. Additionally, the Permitted Transferee shall at all times following such Permitted Transfer comply with all of the terms and conditions of this Section 8.4;
Lease. No later than fifteen (b15) Notwithstanding days after the foregoing provision effective date of this Section and provided Borrower has not exercised its right any Permitted Transfer, ▇▇▇▇▇▇ agrees to sell, convey or transfer all furnish Landlord with (A) a copy of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after instrument effecting the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andPermitted Transfer,
Appears in 1 contract
Sources: Office Lease (Doma Holdings, Inc.)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender Mortgagee shall not unreasonably withhold consent to the simultaneous saleone or more sales, conveyance conveyances or transfer of all transfers of the Individual Properties Mortgaged Property to any Permitted Transferee (as defined in the Notehereafter defined) in their entirety on a single occasion (a "“Property Sale"”) after the first anniversary or a change in control of the first day of the first calendar month after the date hereof Mortgagor so long as control vests in a Permitted Transferee (or the date hereof if dated the first day of an “Equity Transfer” and collectively with a calendar month) and with respect to such Property Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)“Sale”) provided that, to any person or entity provided that for each Sale, each of the following terms and conditions are satisfied:
(i1) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Mortgaged Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000“Transferee”) shall have assumedassumed in writing and agreed to comply with all the terms, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms covenants and conditions set forth in Sections 8.4(a)(i)this Mortgage and the other Loan Documents;
(2) the Transferee shall have assumed all of Mortgagor’s obligations under the Loan Documents pursuant to an assignment and assumption agreement acceptable in form and substance to Mortgagee and pursuant to which Guarantor (as such term is defined in the Note) reaffirms its obligations under the Guaranty (as such term is defined in the Note) following such Transfer;
(3) no Event of Default shall have occurred and be continuing under the Loan Documents;
(4) Mortgagor shall deliver, (iv)at its sole cost and expense, (v)an endorsement to the existing title policy insuring the Mortgage, (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any as modified by the assumption agreement relating to such transfer, as a valid first lien on the Property and naming the Transferee as owner of the fee estate of the Property (except in the case of an Equity Transfer), which endorsement shall insure that, as of the date of the recording of the transfer, the Property shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policy issued on the closing date or otherwise permitted by the Mortgagee or the terms of this Agreement;
(5) Transferee shall deliver opinions regarding its existence, authority and enforceability, which in each case may be relied upon by Mortgagee, and their respective counsel, agents and representatives with respect to Lender written notice of such transfer which notice shall (i) describe the proposed transaction, including the Transferee; and
(6) The transfer or assignment of all or any portion of the membership interests in reasonable detailthe Mortgagor including, (ii) include evidence reasonably satisfactory but not limited to, a transfer of Mortgagor’s fee interest in the Property, is to Lender that the proposed transferee a Permitted Transferee. “Permitted Transferee” shall mean any or all of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, American Realty Capital Trust, Inc., American Realty Capital II, LLC, or any Person or entity that, directly or indirectly, is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)in control of, and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection controlled by or under common control with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andPerson or entity.
Appears in 1 contract
Permitted Transfers. Notwithstanding the provisions of Section 6.3, the following Transfers shall be permitted and are hereby approved by the City, subject to the conditions set forth under Section 6.6, below:
(a) Notwithstanding Any Transfer of the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Dealership Development Parcel creating a Security Financing Interest permitted pursuant to the simultaneous saleapproved Financing Plan and any post-completion Security Financing Interest or any financing obtained by the Developer post-completion; or
(b) Any Transfer of the Dealership Development Parcel directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under Article 7; or
(c) Any Transfer of the Dealership Development Parcel that would allow the operation of the Dealership Development Parcel to maintain the Subaru Brand so long as:
(1) The proposed transferee has continuously been in the business of owning or operating similar Improvements for at least five (5) years prior to the proposed Transfer; (2) as of the date of the proposed Transfer, conveyance the proposed transferee has a net worth equal to or transfer of greater than Three Million Dollars ($3,000,000); and (3) the proposed transferee has been pre-qualified as meeting all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary dealer candidate standards of the first day Subaru Brand as set forth by Subaru of America, Inc., with evidence of such approval from Subaru of America, Inc., being provided to the City to its reasonable satisfaction. Notwithstanding anything to the contrary, if a proposed transferee has been approved by Subaru of America, Inc. or any subsequent manufacturer or brand approved by the City under this Agreement, but does not otherwise meet the requirements of this subsection 6.4(c), the proposed transferee shall nonetheless be deemed to satisfy the requirements of this subsection 6.4(c); or
(d) Any Transfer of the first calendar month after Dealership Development Parcel resulting from the date hereof (foreclosure of a Security Financing Interest or the date hereof if dated the first day granting of a calendar month) deed in lieu of foreclosure of a Security Financing Interest and with respect to such Sale, Lender shall not require a modification the subsequent transfer of the material economic terms hereof (other than Dealership Development Parcel to a corresponding increase in Borrower's deposits into new owner that would allow the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each operation of the following terms and conditions are satisfiedDealership Development Parcel to continue to operate as a new automobile dealership, so long as:
(i1) no default after the expiration of notice or grace periods replacement brand is then continuing hereunder, under the Note, or any of the Other Security Documents;
a nationally recognized automobile brand; (ii2) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee has been pre-qualified by the replacement brand as meeting all of the Property (hereinafterdealer candidate standards required by the replacement brand, "Buyer") as Lender would reasonably require in evaluating an initial extension with evidence of credit to a borrower and pays to Lender a nonsuch pre-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove qualification from the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar transferee being provided to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesCity; 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;
(iii3) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Saleproposed transfer, all in form and substance satisfactory to Lender, including, without limitation, an endorsement the proposed replacement brand may not be operating a new automobile dealership within the City limits or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested may not have operated a new automobile dealership in the Buyer;
City within the previous twelve (vii12) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, months (which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case requirement may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended waived by the Buyer City Manager at the City Manager's sole and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's absolute discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption ; and
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this SectionThe Purchaser and all other Parties agree that, Lender shall not unreasonably withhold consent notwithstanding anything to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined contrary herein and/or in the Note) in their entirety on a single occasion (a "Sale") after Company Shareholders' Agreement, if the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such SaleUpper Exit Conditions are met, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedAdditional Sellers (the "Donors") may donate, no later than ten (10) Business Days prior to the Closing Date, all or some of his/her Transferred Securities (the "Donations") to his/her spouse/partner or ascendant/descendent or sister/brother or nephew/niece (the "Donees"), provided that, at the latest on the date of completion of the relevant Donation:
(i) no default after the expiration relevant Donee grants irrevocable power of notice or grace periods is then continuing hereunderattorney to the concerned Donor and to the CEO, to represent the Donee and exercise any of its rights and obligations under the NoteAgreement and, as the case may be, the Company Shareholders' Agreement to which the Donor is a party and/or any other agreements or arrangements in relation to the Transaction, in particular so that the Donor and the CEO may take any and all actions on behalf of the Other Security DocumentsDonee as may be required and/or necessary in order to give full effect to the Transaction;
(ii) Borrower gives Lender written notice the concerned Donor and his/her spouse undertake with respect to the other Parties that, should such spouse be a Donee in accordance with this clause, in case of the terms of such prospective Sale not less than thirty (30) days divorce Proceedings initiated before the date on which such Sale is scheduled to close andClosing Date and save as otherwise agreed with the Sellers’ Agent and the Purchaser, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a nonspouse re-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar transfers to the Property, concerned Donor the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesTransferred Securities it holds before Closing Date; 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 pays Lenderall other conditions provided for in Article 8.6(b) below are satisfied; it being specified that, concurrently with in case of Donations made to the closing benefit of Donees who are minors, Paragraphs (i) and (ii) above shall not apply and the third party intervening for the needs of such SaleDonations in accordance with French law ("tiers-administrateur") shall, a non-refundable assumption fee in an amount equal simultaneously to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) completion of the then outstanding principal balance concerned Donation, give irrevocable power of attorney to the CEO in order to initial, sign, certify any legal document or other document needed for the purpose of the Note. Borrower also pays, concurrently with transfer of the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject Transferred Securities to the provisions of Article 11 Purchaser on the Closing Date in accordance with this Agreement and more generally exercise any of the Noteconcerned Donees’ rights or obligations under the Agreement and, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall requirethe Company Shareholders’ Agreement.
(b) In addition to the above, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended it is expressly agreed by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member orDonors that, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other thingsany case, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
Donations under Paragraph (viiia) Buyer shall assume the obligations of Borrower under any management agreements pertaining above (each referred to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1"Permitted Transfer") to the effect that the Sale will not result in benefit of Donees (each referred to as a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000"Permitted Beneficiary") shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction fulfilment of the terms following conditions (which shall be cumulatively met):
(i) the concerned Donor serves a written notice to the Sellers’ Agent and conditions to the Purchaser confirming the completion of this Section 8.4the Permitted Transfer procedure at least no later than ten (10) Business Days prior to the Closing Date;
(bii) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sellrelevant Permitted Beneficiary expressly accepts in writing, convey or transfer all of before the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month)Permitted Transfer is completed, to transfer or convey all of its interests in all of become subject and bound by accession to the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall provisions respectively (i) describe of this Agreement as a Seller (or an Additional Seller) by delivering in an Instrument of Adherence and, as the proposed transfer in reasonable detailcase may be, (ii) include evidence reasonably satisfactory of the Company Shareholders’ Agreement to Lender that which the proposed transferee Donor is an Affiliate a party; and
(iii) the concerned Donor and the relevant Permitted Beneficiary will act jointly and will be jointly and severally liable (solidairement responsables) towards the other Parties for the purpose of Borrower the Agreement and that such Key Principal has the compliance of the undertakings and obligations hereunder, the relevant Donor remaining personally liable for the performance by the Permitted Beneficiary of the obligations set forth in this Agreement and, as the case may be, the Company Shareholders’ Agreement to which the Donor is a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and party.
(c) include evidence reasonably satisfactory to Lender It is agreed between the Parties that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with Permitted Transfer procedure(s) that would be implemented under this Article 8.6 shall not delay the Closing Date or in any such transfer to an Affiliate, Key Principal shall assume, way prevent the Closing from and after taking place on the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andClosing Date.
Appears in 1 contract
Sources: Put Option Agreement (Heico Corp)
Permitted Transfers. (a) Notwithstanding the foregoing provisions any other provision of this SectionLease, Lender Lessee may make or permit the Transfers described below without the prior written consent of State (each, a “Permitted Transfers”). The transferee in connection with a Permitted Transfer is referred to herein as a “Permitted Transferee.” In connection with any Permitted Transfer, Lessee shall not unreasonably withhold consent to remain liable for the simultaneous sale, conveyance or transfer performance of all of the Individual Properties (obligations of Lessee hereunder, or if Lessee no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Lessee hereunder as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary they relate to that portion of the first day of Leased Premises that is subject to the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and Permitted Transfer. Each Permitted Transferee shall comply with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following all terms and conditions are satisfied:
of this Lease, including the Permitted Use, and the Permitted Transferee shall expressly covenant to not violate any other agreements affecting the Leased Premises. No later than ten (10) days after the effective date of any Permitted Transfer, Lessee agrees to furnish State with (i) no default after copies of the expiration of notice or grace periods is then continuing hereunder, under the Note, or instrument effecting any of the Other Security Documents;
foregoing Permitted Transfers; (ii) Borrower gives Lender written notice documentation establishing Lessee’s satisfaction of the terms of requirements set forth above applicable to any such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower Permitted Transfer; and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lenderevidence that the Permitted Transferee has in place all insurance coverages required under this Lease. The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent proposed Transfer. The following are Permitted Transfers:
i. Any Transfer to an entity made solely for purposes of accommodating a change or conversion of Lessee’s entity type, concurrently with no resulting change in the closing beneficial ownership of Lessee;
ii. Any Transfer (i) to a corporation controlling, controlled by, or under common control with, Lessee or (ii) of less than fifty percent (50%) of the direct or indirect ownership of, or power to vote the majority of, Lessee’s outstanding voting stock or membership interests;
iii. Any Transfer to an entity which merges with Lessee or acquires substantially all of the outstanding stock or assets of Lessee, provided, in connection with any Transfer to such Salean entity, the net worth and overall financial condition of the successor entity is at least as good as that of Lessee immediately prior to the date of the Transfer or is otherwise acceptable to State;
iv. Any Leasehold Mortgage granted by Lessee solely for security purposes and any Leasehold Mortgage Transfer arising therefrom; and
v. Any commercially reasonable sublease, license agreement, operating agreement or agreement of a non-refundable assumption fee in an amount equal similar nature between Lessee and the operator of any portion of the Leased Premises permitting such operator to all out-of-pocket costs and expenses, operate or manage a portion of the Leased Premises including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) parking areas or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender seminary building for hotel and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andtemporary lodging purposes.
Appears in 1 contract
Sources: Lease Agreement
Permitted Transfers. (a) Notwithstanding the foregoing provisions Provided no Event of this SectionDefault then exists, Lender shall Tenant may, with Landlord’s prior written consent, such consent not to be unreasonably withhold consent to the simultaneous salewithheld, conveyance conditioned or transfer delayed, grant a license or other right of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof occupancy (other than a corresponding increase in Borrower's deposits into lease or sublease) to its subsidiaries, affiliates, clients, contractors, customers, auditors, strategic partners or other entities under common ownership (total or partial) with Tenant or with whom Tenant has or is then establishing a bona fide business relationship (each a “Permitted Occupant”) to occupy and use up to 25% of the Escrow Fund with respect Property, subject to Taxes in the event such Sale results in an increase in following conditions: (a) the real property tax assessment use and occupancy by the applicable taxing authorityPermitted Occupant is expressly subject to, and the Permitted Occupant must comply with, all of the terms, covenants, conditions and obligations on Tenant’s part to be observed and performed under this Lease (other than Tenant’s obligation to pay Rent under this Lease), (b) any violation of any provision of this Lease by the Permitted Occupant shall be deemed to be a violation by Tenant under such provision, (c) the Permitted Occupant shall have no recourse against Landlord whatsoever on account of any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or failure by Landlord to perform any of the Other Security Documents;
its obligations under this Lease or on account of any other matter, (iid) Borrower gives Lender written notice all notices required of Landlord under this Lease shall be forwarded only to Tenant in accordance with the terms of this Lease and in no event shall Landlord be required to send any notices to any Permitted Occupant, (e) in no event shall any use or occupancy of any portion of the Premises by any Permitted Occupant release or relieve Tenant from any of its obligations under this Lease, (f) each such prospective Sale not less than thirty Permitted Occupant shall be deemed a Tenant Party; (30g) days before in no event shall the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee occupancy of any portion of the Property (hereinafter, "Buyer") as Lender would reasonably require by any Permitted Occupant be deemed to create a landlord/tenant relationship between Landlord and such Permitted Occupant or be deemed to vest in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee Permitted Occupant any right or interest in the amount Premises or this Lease, and, in all instances, Tenant shall be considered the sole tenant under the Lease notwithstanding the occupancy of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval any portion of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesProperty by any Permitted Occupant; 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (bh) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender Tenant shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership receive no payment or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into consideration in connection with such Sale;
(ix) Buyer occupancy and use other than fees for services, nominal license or occupancy payments and out of pocket expense reimbursements. Tenant shall furnish an opinion of counsel satisfactory provide to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption Landlord promptly after request a written list of the indebtedness evidenced hereby has been duly authorized, executed names and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner contact information of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) all Permitted Occupants then being allowed access to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined Property by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andTenant.
Appears in 1 contract
Sources: Sublease Agreement (iBio, Inc.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 120 days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials, if any, proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its current draft (along with revised drafts as the same are updated and, when ready, the proposed final form), and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice along with all required information: (i) grant such consent, or (ii) refuse such consent, in its reasonable discretion. Among other reasons, it shall be reasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would lessen the value of the leasehold improvements in the Note) in their entirety on a single occasion (a "Sale") after Premises, unless Tenant agrees, if requested to do so by Landlord, to restore the first anniversary Premises to its condition prior to such alteration before the expiration of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) Term and Tenant provides Landlord with respect security reasonably satisfactory to Landlord to secure such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes obligation in the event Tenant fails to perform such Sale results obligation; (3) Landlord has experienced previous material defaults by or is in litigation with the proposed assignee or subtenant; and (4) the proposed assignee or subtenant is an increase entity with whom Landlord is then negotiating to lease space in the real property tax assessment Project (as evidenced by an exchange of proposals). Landlord shall respond to each of Tenant’s Assignment Notice requests within 15 business days after Landlord’s receipt of such Assignment Notice request along with all documentation required to be delivered hereunder. If Landlord fails to respond within such 15 business day period, then Tenant shall provide Landlord with a second written notice stating in bold and all caps 12 point font that Landlord’s failure to respond to Tenant’s Assignment Notice request within 5 business days after Landlord’s receipt of the applicable taxing authoritysecond notice shall be deemed approval by Landlord, and if Landlord does not respond within such 5 business day period, then Landlord shall be deemed to have approved such Assignment Notice request. Tenant shall reimburse Landlord for Landlord’s reasonable out-of-pocket expenses incurred in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents (not to exceed $2,500 per Assignment Notice request). Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Premises to any person entity controlling, controlled by or entity under common control with Tenant (a “Control Permitted Assignment”) shall not be required, provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the Minimum Net Worth Amount ($25,000,000as determined in accordance with GAAP), and (iii) such assignee shall have assumed, from and after the date of such Sale, agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease arising after the effective date of the assignment (ba “Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted Assignments are hereinafter referred to as “Permitted Assignments.” As used in this Lease, (A) Notwithstanding “Minimum Net Worth Amount” shall mean $750,000,000 as of the foregoing provision date of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower Lease which amount shall be permitted, after the first subject to annual CPI increases on each annual anniversary of the first day date of this Lease, and (B) “CPI” shall mean the first calendar month after Consumer Price Index-All Urban Consumers-San Diego, All Items” compiled by the date hereof U.S. Department of Labor, Bureau of Labor Statistics, (1982-84 = 100) or, if a substantial change is made to such index or it is ceases to be published, the date hereof if dated parties shall select a reasonably acceptable substitute. Notwithstanding anything to the first day contrary contained herein, a grant by Tenant of a calendar month), to transfer license or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall sublease (i) describe with respect to individual offices within the proposed transfer in reasonable detailPremises on an undemised basis to affiliates of Tenant (“Tenant Affiliate”) or, (ii) include evidence reasonably satisfactory with respect to Lender that up to 10% of the proposed transferee is an Affiliate of Borrower and that such Key Principal has Premises to clients or others having a net worth of not less than Twenty-Five Million Dollars business relationship with Tenant ($25,000,000each, a “Relationship Party”), shall not constitute an assignment or subletting requiring Landlord consent under this Section 22; provided that any such Tenant Affiliate or Relationship Party that is subject to a sublease (as opposed to a license) with Tenant shall execute and (c) include evidence reasonably satisfactory comply with the terms of Landlord’s form of consent to Lender that sublease subject to those changes proposed by Tenant which are acceptable to Landlord, in Landlord’s reasonable discretion. Notwithstanding anything to the applicable provisions contrary contained herein, Tenant shall be fully responsible for the acts of Section 8.4 hereof the parties entering the Premises pursuant to the immediately preceding sentence and Landlord shall have been satisfied. In no liability to or in connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andparties.
Appears in 1 contract
Sources: Lease Agreement (Illumina Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 days, but not more than 120 days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its Net Multi-Tenant Laboratory 825 Industrial – Multiple Suites/Vaxcyte - Page 36 consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), (ii) refuse such consent, in its reasonable discretion; or (iii) with respect to any proposed assignment of this SectionLease that is not a Permitted Assignment or, Lender if the proposed transaction is a sublease that is not a Permitted Assignment (as hereinafter defined), and the subletting concerns (together with all other then-effective subleases) 50% or more of the Premises for substantially the remainder of the Term, terminate this Lease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). Among other reasons, it shall be reasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would materially lessen the value of the leasehold improvements in the Premises, or would require materially increased services by Landlord; (3) in Landlord’s reasonable judgment, the proposed assignee or subtenant is engaged in areas of scientific research or other business concerns that are controversial in a manner that is inconsistent with other tenants in the Project such that they may (i) attract or cause negative publicity for or about the Building or the Project, (ii) negatively affect the reputation of the Building, the Project or Landlord, (iii) attract protestors to the Building or the Project, or (iv) lessen the attractiveness of the Building or the Project to any tenants or prospective tenants, purchasers or lenders; (4) in Landlord’s reasonable judgment, the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (5) in Landlord’s reasonable judgment, the character or reputation of the proposed assignee or subtenant is unethical, corrupt or immoral, or business of the proposed assignee or subtenant is inconsistent with the desired tenant-mix or the quality of other tenancies in the Project or is inconsistent with the type and quality of the nature of the Building; (6) intentionally omitted; (7) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant; (8) the use of the Premises by the proposed assignee or subtenant will violate any applicable Legal Requirement; (9) intentionally omitted; or (10) the proposed assignee or subtenant is an entity with whom Landlord is then-currently negotiating to lease space in the Project. If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after ▇▇▇▇▇▇▇▇’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not unreasonably withhold withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice and, as of the Assignment Date, except for those obligations that expressly survive the expiration or earlier termination of this Lease, neither Landlord nor Tenant shall have any further rights, duties or obligations under this Lease with respect to the space described in the Assignment Notice (including Base Rent in connection therewith) and the Security Deposit shall be proportionately reduced. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer other transfer. Tenant shall pay to Landlord a fee equal to Two Thousand Five Hundred Dollars ($2,500) in connection with its consideration of all any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇’s consent to an assignment of this Lease or a subletting of any portion of the Individual Properties (as defined in the Note) in their entirety on a single occasion Premises to any entity controlling, controlled by or under common control with Tenant (a "Sale"“Control Permitted Assignment”) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove assignment in its reasonable discretion. In addition, Tenant shall have the proposed Buyerright to assign this Lease, upon 10 days prior written notice to Landlord ((x) unless Tenant is prohibited from providing such notice by applicable Legal Requirements in which case Tenant shall notify Landlord promptly thereafter, and (y) if the transaction is subject to confidentiality requirements, Tenant’s advance notification shall be subject to Landlord’s execution of a non-disclosure agreement reasonably acceptable to Landlord and Tenant) but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of (A) merger, consolidation or corporate reorganization, (B) by the purchase of all or substantially all of the assets or the ownership interests of Tenant or, (C) if the ownership interests of Tenant are not actively traded upon a Net Multi-Tenant Laboratory 825 Industrial – Multiple Suites/Vaxcyte - Page 37 stock exchange or in the over-the-counter market, as a result of a deemed assignment due to a change of control pursuant to Section 22(a), provided that (i) such merger or consolidation, such approval acquisition or assumption or such deemed assignment, as the case may be, is for a bona fide business purpose and not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval principally for the purpose of transferring this Lease, and (ii) the net worth (as determined in accordance with generally accepted accounting principles (“GAAP”)) of the proposed Buyerassignee (or a guarantor of this Lease that agrees to guaranty this Lease following the date of the assignment or, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyextent Tenant remains the tenant under this Lease following such Corporate Permitted Assignment, Tenant) is not less than the Buyer's net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s most current quarterly or annual financial strengthstatements, and (iii) such assignee shall agree in writing to assume all of the Buyer's general business standing terms, covenants and conditions of this Lease (a “Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted Assignments are hereinafter referred to collectively as “Permitted Assignments” and individually as a “Permitted Assignment.” Notwithstanding anything to the Buyer's relationships contrary contained in this Lease, Tenant may from time to time enter into agreements (each, a “Shared Space Arrangement”) with affiliates of Tenant with whom Tenant collaborates pursuant to which such affiliates may occupy up to 20% of the Premises as “Shared Space Area”, and experience with contractors, vendors, tenants, lenders and other business entitiessuch Shared Space Arrangements shall not require Landlord’s consent under this Section 22; 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party Tenant shall be required forto provide Landlord with a copy of each such license agreement and, prior to the effective date of each such license agreement, Tenant and each licensee shall be required to execute Landlord’s reasonable form of acknowledgment pursuant to which Tenant and the licensee acknowledge and agree, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall that: (i) describe the proposed transfer in reasonable detailterms of the Shared Space Arrangement are subject and subordinate to the terms of this Lease, (ii) include evidence reasonably satisfactory to Lender that if this Lease terminates, then the proposed transferee Shared Space Arrangement shall terminate concurrently therewith, (iii) each licensee shall, during the term of its applicable Shared Space Arrangement, maintain the same insurance as is an Affiliate required of Borrower Tenant under this Lease and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)provide Landlord with insurance certificates evidencing the same and naming the Landlord Parties as additional insureds, and (civ) include evidence reasonably satisfactory the waivers and releases set forth in the second to Lender that the applicable provisions last paragraph of Section 8.4 hereof have been satisfied17 that apply as between Landlord and Tenant shall also apply as between Landlord and licensee. In connection with any such transfer to an Affiliate, Key Principal Tenant shall assume, from and after be fully responsible for the date conduct of such transfer, all of companies within the obligations of Guarantor under the Environmental Indemnity Shared Space Area and the Guaranty pursuant Project, and Tenant’s indemnification obligations set forth in this Lease shall apply with respect to the conduct of such documents parties within the Shared Space Area and agreements as Lender shall reasonably require to evidence and effectuate such assumption andProject.
Appears in 1 contract
Sources: Lease Agreement (Vaxcyte, Inc.)
Permitted Transfers. Notwithstanding Section 16(a), Tenant may assign all or part of its interest in this Lease or sublease all or part of the Premises (aa “Permitted Transfer”) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer following types of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion entities (a "Sale"“Permitted Transferee”) after without the first anniversary written consent of the first day Landlord: any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Salebusiness entities, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
so long as (i) no default after Tenant’s obligations hereunder are assumed by the expiration of notice entity surviving such merger or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
created by such consolidation; and (ii) Borrower gives Lender written notice the Tangible Net Worth of the terms of such prospective Sale surviving or created entity is not less than thirty (30) days before the Tangible Net Worth of Tenant as of the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00Permitted Transfer. Lender Tenant shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency promptly notify Landlord of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender Permitted Transfer. Tenant shall have received confirmation in writing from remain liable for the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal performance of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under Tenant hereunder, or if Tenant no longer exists because of a merger, consolidation, or acquisition, the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur surviving or acquiring entity shall expressly be subject to assume in writing the satisfaction obligations of Tenant hereunder. Additionally, the Permitted Transferee shall expressly assume in writing the obligations of Tenant hereunder; and it shall comply with all of the terms and conditions of this Section 8.4;
(b) Notwithstanding Lease and the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all use of the Individual Properties pursuant to Section 8.4(aPremises by the Permitted Transferee may not violate any other agreements affecting the Premises, the Building, Landlord or other tenants of the Building. No later than ten (10) above, Borrower shall be permitted, business days after the first anniversary effective date of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month)any Permitted Transfer, Tenant agrees to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but furnish Landlord with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shallcopies of the instrument effecting the Permitted Transfer, not less than thirty (30y) days before documentation establishing Tenant’s satisfaction of the requirements set forth above applicable to any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)Permitted Transfer, and (cz) include evidence reasonably satisfactory of insurance as required under this Lease with respect to Lender that the applicable provisions Permitted Transferee. The occurrence of Section 8.4 hereof have been satisfieda Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. “Tangible Net Worth” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied, excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. In connection the event that Tenant desires to effect a Permitted Transfer, however the Tangible Net Worth requirement is not met, Landlord agrees to be reasonable and discuss in good faith with any Tenant the possibility of achieving Tenant net worth equivalent and creditworthiness acceptable to Landlord via alternative means of credit enhancement, such transfer as an additional letter of credit. Any subsequent assignment or sublease by a Permitted Transferee shall be subject to an Affiliate, Key Principal shall assume, from and after the date terms of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andthis Article 16.
Appears in 1 contract
Sources: Office Building Lease (GrubHub Inc.)
Permitted Transfers. Notwithstanding anything to the contrary contained in this Agreement, during the Lock-Up Period, each Lock-Up Party may Transfer, without the consent of Ignyte, any of such Lock-Up Party’s Lock-Up Securities (a) to any of such Lock-Up Party’s Permitted Transferees, upon written notice to Ignyte or (b) pursuant to any liquidation, merger, stock exchange or other similar transaction which results in all of Ignyte’s stockholders having the right to exchange their Ignyte Securities for cash, securities or other property subsequent to the Business Combination; provided, that in connection with any Transfer of such Lock-Up Securities, the restrictions and obligations contained in Section 2.1 and this Section 2.2 will continue to apply to such Lock-Up Securities after any Transfer of such Lock-Up Securities and such transferee shall execute a lock-up agreement substantially in the form of this Agreement for the balance of the Lock-Up Period. Notwithstanding the foregoing provisions of this SectionSection 2.2, Lender shall a Lock-Up Party may (i) not unreasonably withhold consent make a Transfer to a Permitted Transferee if such Transfer has as a purpose the simultaneous saleavoidance of or is otherwise undertaken in contemplation of avoiding the restrictions on Transfers in this Agreement (it being understood that the purpose of this provision includes prohibiting the Transfer to a Permitted Transferee (A) that has been formed to facilitate a material change with respect to who or which entities Beneficially Own the Lock-Up Securities, conveyance or transfer of all of the Individual Properties (as defined B) followed by a change in the Note) in their entirety on relationship between the Lock-Up Party and the Permitted Transferee (or a single occasion (a "Sale"change of control of such Lock-Up Party or Permitted Transferee) after the first anniversary Transfer with the result and effect that the Lock-Up Party has indirectly made a Transfer of Lock-Up Securities by using a Permitted Transferee, which Transfer would not have been directly permitted under this Section 2 had such change in such relationship occurred prior to such Transfer), or (ii) enter into a written plan meeting the first day requirements of Rule 10b5-1 under the first calendar month Exchange Act after the date hereof of this Agreement relating to the sale of the undersigned’s Lock-Up Securities, provided that (or A) the date hereof if dated the first day of a calendar month) and with respect securities subject to such Sale, Lender shall plan may not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default be sold until after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a nonLock-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, Up Period and (bB) prior the Company shall not be required to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingeffect, and the qualification undersigned shall not effect or cause to be effected, any public filing, report or other public announcement regarding the establishment of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andtrading plan.
Appears in 1 contract
Sources: Lock Up Agreement (Peak Bio, Inc.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 days, but not more than 120 days, before the date Tenant executes an assignment or sublease (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form (or, at Tenant’s option, the final letter of intent or term sheet therefor, but in such event any consent thereto by Landlord shall be subject to Landlord’s approval of the final assignment or sublease instrument, not to be unreasonably withheld, conditioned or delayed). Upon Landlord’s written request Tenant shall also provide such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 10 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its commercially reasonable discretion (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iii) in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof event Tenant’s request is for an assignment (other than a corresponding increase in Borrower's deposits into Permitted Assignment) or for a sublease for that portion of the Escrow Fund Premises consisting of a minimum of one full suite for all or substantially all of the then remaining Term, terminate this Lease with respect to Taxes the space described in the event Assignment Notice as of the Assignment Date (an “Assignment Termination”). Without limiting the other grounds upon which it may be commercially reasonable for Landlord to refuse consent, it shall be deemed commercially reasonable for Landlord to refuse consent if (1) the proposed assignee or subtenant (or such Sale results party’s affiliates, principals or predecessors) has been requested to take remedial action in an increase connection with Hazardous Materials contamination or Landlord otherwise determines that the proposed assignee’s or subtenant’s use of the Premises presents a risk associated with Hazardous Materials or is not compatible with the Project; (2) the proposed assignee or subtenant is a governmental agency; (3) the proposed assignee or subtenant is engaged in areas of scientific research or other business concerns that are controversial such that Landlord determines the real property tax assessment by same could reasonably be expected to (a) attract or cause negative publicity for or about the applicable taxing authority)Building or the Project, (b) negatively affect the reputation of the Building, the Project or Landlord, (c) attract protestors to the Building or the Project, or (d) lessen the attractiveness of the Building or the Project to any person tenants or entity provided that each of prospective tenants, purchasers or lenders; (4) the following terms and conditions are satisfied:
assignment or sublease is prohibited by ▇▇▇▇▇▇▇▇’s lender(s); (i5) no default after Landlord has experienced previous defaults by or is in litigation with the expiration of notice proposed assignee or grace periods is then continuing hereunder, under subtenant; (6) the Noteproposed assignee or subtenant, or any entity that, directly or indirectly, controls, is controlled by, or is under common control with the proposed assignee or subtenant, is then an occupant of the Other Security Documents;
Project; (ii7) Borrower gives Lender written the proposed assignee or subtenant is an entity with whom Landlord is negotiating to lease space in the Project; or (8) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would require increased services by Landlord. If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 10 business days after Landlord’s notice electing to exercise the Assignment Termination, in which event the Assignment Termination shall be null and void. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in 321 Arsenal (AOTC) / Forma Therapeutics - Page 25 such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender Two Thousand Five Hundred Dollars ($2,500) in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. In addition, Tenant shall have the Sale plus an amount equal right, upon 30 days’ prior written notice to one percent Landlord (1.0%) except no such prior notice shall be required where Tenant is subject to applicable securities laws or regulations restricting disclosure, or bound by any applicable confidentiality agreement prohibiting earlier notification; provided that Tenant shall provide Landlord with notice as soon as Tenant is no longer restricted from doing so), to assign this Lease or to sublet all or a portion of the then outstanding principal balance Premises, without obtaining Landlord’s prior written consent, to any affiliate or parent of Tenant or any corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the Note. Borrower also paysassets or the direct or indirect ownership interests of Tenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) abovepurpose of transferring the Lease, (Bii) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the proposed assignee or sublessee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Saleassignee or subtenant shall agree in writing to assume all of the terms, covenants and conditions of this Lease (or in the case of a sublease for less than all of the Premises, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease applicable to the subleased premises thereunder) (b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey each such assignment or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of sublease being a calendar month“Permitted Assignment”), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Sources: Lease Agreement (Forma Therapeutics Holdings, Inc.)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant ActiveUS 183164559v.14 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (AOTC) Notwithstanding / WEREWOLF THERAPEUTICS, INC. - Page 26 desires the foregoing provisions assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender shall stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, provided Landlord will not unreasonably withhold such consent (provided that, in the case of a sublease, Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the simultaneous saleeffective date of any such subletting), conveyance or transfer of all of the Individual Properties (as defined in the Noteiii) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date if Tenant’s request is for an assignment (other than a corresponding increase Permitted Assignment) or a sublease of greater than 25% of the Premises or a sublease for all or substantially all of the then-remaining Term (an “Assignment Termination”). Without limiting the other grounds upon which it may be reasonable for Landlord to refuse consent, it shall be deemed reasonable for Landlord to refuse consent if (1) the proposed assignee or subtenant is a governmental agency; (2) in Borrower's deposits into Landlord’s reasonable judgment, the Escrow Fund with respect to Taxes use of the Premises by the proposed assignee or subtenant would entail any alterations that would lessen the value of the leasehold improvements in the event Premises, or would require increased services by Landlord; (3) the proposed assignee or subtenant is engaged in areas of scientific research or other business concerns that are controversial such Sale results that Landlord determines the same could reasonably be expected to (A) attract or cause negative publicity for or about the Building or the Project, (B) negatively affect the reputation of the Building, the Project or Landlord, (C) attract protestors to the Building or the Project, or (D) lessen the attractiveness of the Building or the Project to any tenants or prospective tenants, purchasers or lenders; (4) in an increase Landlord’s reasonable judgment, the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (5) in Landlord’s reasonable judgment, the character, reputation, or business of the proposed assignee or subtenant is inconsistent with the desired tenant-mix or the quality of other tenancies in the real property tax assessment Project or is inconsistent with the type and quality of the nature of the Building; (6) Landlord has received from any prior landlord to the proposed assignee or subtenant a negative report concerning such prior landlord’s experience with the proposed assignee or subtenant; (7) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant; (8) the use of the Premises by the proposed assignee or subtenant will violate any applicable taxing authority), to any person Legal Requirement; (9) the proposed assignee or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Notesubtenant, or any entity that, directly or indirectly, controls, is controlled by, or is under common control with the proposed assignee or subtenant, is then an occupant of the Other Security Documents;
Project; (ii10) Borrower gives Lender written the proposed assignee or subtenant is an entity with whom Landlord is negotiating to lease space in the Project; (11) the proposed assignee or subtenant (or such party’s affiliates, principals or predecessors) has been requested to take remedial action in connection with Hazardous Materials contamination or Landlord otherwise determines the proposed assignee’s or subtenant’s use of the Premises presents a risk associated with Hazardous Materials or is not compatible with the Project; or (12) the assignment or sublease is prohibited by Landlord’s lender. If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, Landlord a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender Two Thousand Five Hundred Dollars ($2,500) in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. ActiveUS 183164559v.14 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (AOTC) / WEREWOLF THERAPEUTICS, INC. - Page 27 In addition, Tenant shall have the Sale plus an amount equal right to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also paysassign this Lease, concurrently with the closing of such Saleupon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer to a corporation or other entity which is (a) assumes and agrees controlling, controlled by or under common control with Tenant (a “Control Permitted Assignment”), provided that Landlord shall have the right to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 reasonably approve of the Noteform of such assignment, and or (b) prior a successor-in-interest to Tenant, by way of merger, consolidation or concurrently with corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Saleassets or the ownership interests of Tenant provided that (i) such merger or consolidation, all in form and substance satisfactory to Lenderor such acquisition or assumption, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that the assumption purpose of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, transferring this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
Lease (b) Notwithstanding the foregoing provision of this Section a “Corporate Permitted Assignment”). Control Permitted Assignments and provided Borrower has not exercised its right Corporate Permitted Assignments are hereinafter referred to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignments.”
Appears in 1 contract
Permitted Transfers. The Shares, Registrable Shares and rights granted to DRL under this Agreement may be transferred by DRL to (a) Notwithstanding the foregoing provisions of this Sectionany entity that controls, Lender shall not unreasonably withhold consent to the simultaneous saleis controlled by, conveyance or transfer of all of the Individual Properties is under common control with, DRL, or (as defined in the Noteb) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
other than an entity described in clause (ia) no default after the expiration of notice or grace periods is then continuing hereunderhereof acquiring all, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale but not less than thirty (30) days before the date on which such Sale is scheduled to close andall, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property Shares or Registrable Shares (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee such terms are defined in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesRights Agreement) held by DRL; provided, however, that, notwithstanding Lender's agreement to consider in either case, (i) the foregoing factors in determining whether to give or withhold such approval, such approval shall be Company is 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 pays Lender, concurrently with written notice by the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary transferee at the time of such transfer stating the Sale, all in form name 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification address of the signers transferee and identifying the securities with respect to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which such rights are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entitybeing assigned, and (Eii) with respect any transferee to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participationswhom rights under this Agreement are transferred shall, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant condition to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender the Company a written instrument by which such transferee agrees to be bound by the obligations imposed upon DRL under Section 10 to the same extent as if such transferee were a party hereto; provided, further, that in the case of a proposed transfer to an entity which neither controls, is controlled by, nor is under common control with, DRL, the Shares or Registrable Shares issued to DRL or the rights granted to DRL hereunder or under any other Financing Agreement, may not be transferred to any entity which is, in the reasonable judgment of the Board of Directors of the Company, a competitor of the Company. Registrable Shares (other than the Shares) shall not be subject to the foregoing transfer restrictions provided that the Company is given prior written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfiedany transfer. In connection with addition, DRL may transfer Shares or Registrable Shares as part of any such transfer to an Affiliate, Key Principal shall assume, from and after merger of the date Company or sale of such transfer, all or substantially all of the obligations outstanding capital stock of Guarantor the Company. Except as provided herein, no transfer of Shares, Registrable Shares or rights under this Agreement shall be permitted. The foregoing transfer restrictions shall terminate and be of no further force or effect upon the Environmental Indemnity and occurrence of a "Public Offering" (as defined in the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andRestated Certificate) or the acquisition of the Company, whether effected by means of merger, sale of assets or capital stock or otherwise.
Appears in 1 contract
Sources: Series E Convertible Preferred Stock Purchase Agreement (Epix Medical Inc)
Permitted Transfers. If Tenant desires to assign, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (aas defined below, then at least 10 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of this Sectionthe Premises and any Hazardous Materials proposed to be used, Lender stored, handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent, or (ii) refuse such consent, in its reasonable discretion (provided that Landlord shall not unreasonably withhold further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting). No failure of Landlord to deliver a timely notice in response to the Assignment Notice shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer of other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the Individual Properties foregoing, Landlord’s consent to a subletting of any portion of the Premises to any Affiliated User (as defined in the Notedefine below) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(iA) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease (Landlord hereby approves the form of sublease agreement draft dated September 20, 2006 as long as no material changes are made thereto), and (B) Tenant delivers to Landlord prompt written notice thereof. For purposes of this Lease, “Affiliated User” means any entity that owns 25% or disapprove more of the proposed Buyerissued and outstanding shares or other ownership interests in any of Wellstat Biologics, such approval not to be unreasonably withheld Inc., Wellstat Therapeutics, Inc., or delayedAVT (collectively, “Tenant Affiliates”), any entity that is owned 9 West Wa▇▇▇▇▇ ▇ill Road/BioVeris Corporation - Page 18 25% or more by any of the Tenant Affiliates, or any entity the equity interests of which are owned 25% or more by Sa▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Na▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, or Da▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇. In determining whether addition, Tenant shall have the right to give assign this Lease (in whole but not in part), upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to Wellstat Biologics, Inc., Wellstat Therapeutics, Inc., or withhold its approval AVT (“Wellstat Assignment”). On the date of the proposed BuyerWellstat Assignment, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees such assignee shall deliver the Security Deposit to pay all indebtedness secured hereby Landlord as and when due subject to the provisions of Article 11 of the Noteprovided in Section 6, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, BioVeris Corporation shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof released from any liability first accruing and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower arising under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, Lease from and after the date of the Wellstat Assignment. In addition, Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or a portion of the assets or the ownership interests of Tenant provided that (i) such Salemerger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring the Lease, and (ii) the net worth (as determined in accordance with GAAP) of the assignee is not less than $20,000,000 as of the date immediately preceding such merger, consolidation, corporate reorganization, or sale, and (iii) such assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to assignment (the transfer described in this paragraph, together with the transfer described in the preceding paragraph as well as the subletting described in the last two sentences of Section 8.4(a22(b) above, Borrower shall each constitute a “Permitted Assignment”). In the case of an assignment or subletting requiring Landlord’s prior written consent, Landlord shall not unreasonably withhold, delay, or condition such consent. Among other reasons, it shall be permittedreasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency that distributes governmental or other payments, after benefits, or information to persons who personally appear at the first anniversary Premises or is an agency whose use of the Premises would be inconsistent with the type and quality of the first day class nature of the Building; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would lessen the value of the leasehold improvements in the Premises, or would require increased services by Landlord; (3) in Landlord’s reasonable judgment, the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (4) in Landlord’s reasonable judgment, the character, reputation, or business of the proposed assignee or subtenant is inconsistent with the type and quality of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all class nature of the Individual Properties Building; (5) Landlord has received from any prior landlord to any Affiliate the proposed assignee or subtenant a substantively negative report dealing with material matters concerning such prior landlord’s experience with the proposed assignee or subtenant; (hereinafter defined6) whose key principal's Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant; (7) the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment use of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred Premises by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, assignee or subtenant will violate any applicable Legal Requirement; (ii) include evidence reasonably satisfactory to Lender that 8) the proposed transferee assignment or sublease will create a vacancy elsewhere in the Building; or (9) the assignment or sublease is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andprohibited by Landlord’s lender.
Appears in 1 contract
Sources: Lease Agreement (Bioveris Corp)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent any provision to the simultaneous salecontrary herein, conveyance or Holdings LLC shall be permitted to transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), WPS Ltd Exchange Shares to any person or entity provided that Permitted Holdings LLC Assignee, and any Permitted Holdings LLC Assignee may in turn transfer WPS Ltd Exchange Shares owned by it to another Permitted Holdings LLC Assignee, if, but only if, each of the following terms and conditions are satisfiedprecedent have been satisfied with respect to each such transfer:
(i) no default after the expiration transferee in the proposed transfer shall have executed a written undertaking acknowledging notice of, and agreeing to be bound by, the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsthis Agreement applicable to Holdings LLC;
(ii) Borrower gives Lender the transferee in the proposed transfer shall have executed a written notice guaranty pursuant to which such transferee will agree to guaranty (on a basis in which recourse is strictly limited to the WPS Ltd Exchange Shares received by such transferee and any other securities issued with respect thereto or in exchange therefor) any liability that Holdings LLC may have to WPS Ltd under the indemnification provisions set forth in Article 10 of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close Share Exchange Agreement; and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee transferee in an amount equal the proposed transfer will authorize the Agent (as defined below) to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) retain physical possession of the then outstanding principal balance of certificate representing the Note. Borrower also pays, concurrently WPS Ltd Exchange Shares owned by such transferee in accordance with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 4 of this Security Instrument insuring that fee simple title Agreement until such shares become Released Shares. APPOINTMENT OF AGENT WITH RESPECT TO SHARES OWNED BY PERMITTED HOLDINGS LLC ASSIGNEES
4.1. Appointment of Agent. Holdings LLC hereby agrees to act as agent (the Property is vested in the Buyer;
(vii"Agent") Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies retain physical possession of all documents relating certificates representing WPS Ltd Exchange Shares that have been transferred to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and a Permitted Holdings LLC Assignee until such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer shares become Released Shares in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAgreement.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord shall, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice grant or refuse such consent, in its sole discretion with respect to a proposed assignment, hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the Premises (a "MAJOR SUBLETTING"), or grant or refuse such consent, in its reasonable discretion with respect to a proposed subletting other than a Major Subletting (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting). Notwithstanding the foregoing, (a) Notwithstanding following a Reorganization Assignment (as defined below) or (b) if neither the foregoing provisions of this Sectionoriginal Landlord nor a person affiliated with the original Landlord is the Landlord under the Lease, Lender then in either case Landlord shall not unreasonably withhold grant or refuse its consent to the simultaneous sale, conveyance or transfer subletting of all or any portion of the Individual Properties (as defined Premises in the Note) in their entirety on its reasonable discretion. Upon receiving any Assignment Notice for any proposed assignment, Major Subletting or other subletting which is for a single occasion (a "Sale") after the first anniversary period of more than 50% of the first day remaining balance of the first calendar month after Term as of the date hereof (or the date hereof if dated the first day of a calendar month) and such proposed subletting is to commence, Landlord may terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase an "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in Borrower's deposits into full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the Escrow Fund term and estate herein granted, shall terminate as of the Assignment Date with respect to Taxes the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord's consent to the event such Sale results proposed assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, Landlord's consent to an increase in assignment of this Lease or a subletting of any portion of the real property tax assessment by the applicable taxing authority), Premises to any person entity controlling, controlled by or entity under common control with Tenant shall not be required, provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyerassignment, such which approval shall not to be unreasonably withheld or delayedwithheld. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord's prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyernot in Landlord's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an reasonable opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles ("GAAP")) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant's most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant assignment (such assignment is herein referred to Section 8.4(a) above, Borrower shall be permitted, after as a "REORGANIZATION ASSIGNMENT"). Each assignment or subletting described in the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of two immediately preceding sentences is referred to herein as a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key PrincipalPERMITTED ASSIGNMENT.") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and
Appears in 1 contract
Sources: Lease Agreement (Acusphere Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), If Landlord consents to any person Sublease or entity provided that each of the following terms and conditions are satisfied:Assignment as set forth in Section 16(b):
(i) no default Tenant may thereafter, within ninety (90) days after Landlord’s consent, enter into such Assignment or Sublease, but only with the expiration of notice or grace periods is then continuing hereunder, under party and upon the Note, or any of same terms as set forth in the Other Security DocumentsTransfer Notice;
(ii) Borrower gives Lender written notice In the case of a Sublease, Tenant shall pay to Landlord monthly, together with monthly installments of rent hereunder, fifty percent (50%) of the terms difference for such month between (x) any and all sums payable to Tenant in connection with such Sublease (including key money, bonus money and any payment in excess of fair market value for services rendered by Tenant in connection with such prospective Sale not less than thirty Sublease or for assets, fixtures, inventory, equipment or furniture transferred by Tenant in connection with such Sublease), minus (30y) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee sum of the Property proportionate amount (hereinafter, "Buyer"on a Rentable Area basis) as Lender would reasonably require in evaluating an initial extension of credit to a borrower Basic Rent payable by Tenant under this Lease for the space covered by such Sublease plus any actual and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, incurred by Tenant in connection with such Sublease (including, without limitationbut not limited to, reasonable attorneys' brokerage commissions, legal fees, incurred improvement allowances, rent abatements and rent paid during vacancy);
(iii) In the case of an Assignment, Tenant shall pay to Landlord, as and when received, fifty percent (50%) of the difference between (x) any transfer or assignment fee, purchase price or other consideration received by Lender Tenant in connection with the Sale plus an amount equal Assignment attributable to one percent the value of this Lease (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies if other assets are transferred in connection with the SaleAssignment, a fair allocation of value shall be made to this Lease for the purposes of this Section 16, independent of any allocation made as between Tenant and the assignee for their own purposes), minus (y) the sum of the Basic Rent payable by Tenant under this Lease for the Premises plus any actual and reasonable out-of-pocket costs incurred by Tenant in connection with such Assignment (including, but not limited to, brokerage commissions, legal fees, improvement allowances, rent abatements and rent paid during vacancy);
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due Any Sublease or Assignment shall be subject to all of the provisions of Article 11 this Lease, and Landlord’s consent to any Sublease or Assignment shall not be construed as a consent to any terms thereof which conflict with any of the Note, and (b) prior provisions of this Lease except to or concurrently with the closing of extent that Landlord specifically agrees in writing to be bound by such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;conflicting terms; and
(v) Borrower and the Buyer execute, without any cost No Transferee (other than an Affiliate or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, Successor which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, assigned Tenant’s rights under this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (CLease pursuant to Section 16(h) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000below) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sellexercise any right or option under this Lease to lease additional space, convey extend the Term, or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andterminate this Lease.
Appears in 1 contract
Sources: Lease Agreement (Health Net Inc)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of anything contained in this Section, Lender shall not unreasonably withhold consent Lease to the simultaneous salecontrary, conveyance Tenant may, without the consent of Landlord, assign this Lease or transfer of sublease all or any portion of the Individual Properties Premises (as defined in the Note) in their entirety on a single occasion (herein, a "SalePermitted Transfer") after the first anniversary to any affiliate of the first day of the first calendar month after the date hereof Tenant (an entity which is controlled by, controls, or the date hereof if dated the first day of a calendar month) and with respect to such Saleis under common control with, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authorityTenant), to any person or entity provided that each acquires all or substantially all of the following terms and conditions are satisfied:
(i) no default after assets or ownership interests of Tenant, any person or entity that acquires all or substantially all of the expiration assets or ownership interests of notice or grace periods is then continuing hereunder, under the Noteany of Tenant's business divisions, or any of the Other Security Documents;
entity resulting from a merger or consolidation with Tenant (iieach, a "Permitted Transferee"), provided that (a) Borrower Tenant gives Lender written Landlord notice of the such assignment or sublease within thirty (30) business days thereafter, accompanied by an executed counterpart of any assignment or sublease agreement concerned (from which any financial terms of may be redacted) if such prospective Sale not less than an assignment or sublease agreement exists within thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee after consummation of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the NotePermitted Transfer, and (b) prior such Permitted Transfer is not a subterfuge by Tenant to avoid its obligations under this Lease or concurrently with the closing otherwise effectuate any "release" by Tenant of such Saleobligations and such Permitted Transferee shall thereafter become liable under this Lease, on a joint and several basis, with Tenant. The infusion of additional equity capital in Tenant or an initial public offering of equity securities of Tenant under the Buyer executesSecurities Act of 1933, without any cost or expense to Lenderas amended, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lenderwhich results in Tenant's title insurance policy, hazard insurance 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 Lenderstock being traded on a national securities exchange, including, without limitationbut not limited to, the NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System shall not be deemed to be an endorsement assignment requiring Landlord's consent. Any transfer, assignment, conveyance or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title agreement with respect to the Property is vested in the Buyer;
(vii) Buyer shall furnishmembership, if the Buyer is a corporationshares, partnership or other entityownership or beneficial interests in, all appropriate papers evidencing or the Buyer's capacity and good standingcreation of any ownership or beneficial interest in or among the direct or indirect shareholders, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of Tenant, or other corporate reorganizations or restructurings involving the Buyerdirect and indirect owners of Tenant and its affiliates shall not require Landlord's prior consent. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be)"Control", as Lender shall requireused in this Section 14.5, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
mean (A) that the Buyer's formation documents provide for ownership, directly or indirectly, of at least fifty-one percent (51%) of the matters described voting securities of, or possession of the right to vote, in subparagraph the ordinary direction of its affairs, of at least fifty-one percent (vii51 %) aboveof the voting interest in, any person or entity, or (B) that the assumption power to direct or cause the direction of the indebtedness evidenced hereby has been duly authorized, executed management and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner policies of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") Notwithstanding containing such information about the foregoing provisions of this Sectionproposed assignee or sublessee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 1 5 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification hypothecation or other transfer or subletting of more than (together with all other then effective subleases) 50% of the material economic terms hereof (other than a corresponding increase Premises, or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting of up to (together with all other then effective subleases) 50% of the event Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authoritysubletting), or with respect to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Notea Stock Transfer, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice terminate this Lease with respect to they space described in the Assignment Notice, as of the terms of such prospective Sale not less than thirty Assignment Date (30) days before the date on which such Sale is scheduled to close andan "Assignment Termination"). If Landlord elects an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove withdraw such Assignment Notice by written notice to Landlord of such election within 10 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord's consent to the proposed Buyerassignment, such approval not to be unreasonably withheld sublease or delayedother transfer. In determining whether to give or withhold its approval Tenant shall reimburse Landlord for all of the proposed Buyer, Lender shall consider the BuyerLandlord's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender expenses in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets consideration of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Sources: Lease Agreement (Viacell Inc)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions of this Sectionproposed assignee or sublessee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, or the date hereof if dated the first day of a calendar month(iii) and terminate this Lease with respect to such Sale, Lender shall not require a modification the space described in the Assignment Notice as of the material economic terms hereof Assignment Date (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Assignment Termination”), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written . If Landlord delivers notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled its election to close andexercise an Assignment Termination, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve withdraw such Assignment Notice by written notice to Landlord of such election within 10 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice and Base Rent shall be proportionately adjusted. No failure of Landlord to exercise any such option to terminate this Lease, or disapprove to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed Buyerassignment, such approval not sublease or other transfer. Tenant shall pay to be unreasonably withheld Landlord a fee equal to Two Thousand Five Hundred Dollars ($2,500) in connection with its consideration of any Assignment Notice and/or its preparation or delayedreview of any consent documents. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record Notwithstanding anything contained in owning and operating facilities similar this Section 22(b) to the Propertycontrary, Tenant shall have the Buyer's financial strengthright to assign this Lease, upon 10 days prior written notice to Landlord ((x) unless Tenant is prohibited from providing such notice by applicable Legal Requirements in which case Tenant shall notify Landlord promptly thereafter, and (y) if the Buyer's general business standing and the Buyer's relationships and experience with contractorstransaction is subject to confidentiality requirements, 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 Tenant’s advance notification 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 pays Lender, concurrently with the closing Landlord’s execution of such Sale, a non-refundable assumption fee in an amount equal disclosure agreement reasonably acceptable to Landlord and Tenant) but without obtaining Landlord’s prior written consent, to a corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) or substantially all of the then outstanding principal balance assets or the ownership interests of the Note. Borrower also paysTenant provided that (i) such merger or consolidation, concurrently with the closing of or such Saleacquisition or assumption, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the greater of the net worth ($25,000,000as determined in accordance with GAAP) shall have assumedof Tenant as of (A) the Commencement Date, from and after or (B) as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity Lease and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andLicense Agreement (a “Permitted Assignment”).
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this SectionPremises, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) at least 15 business days before the date on which such Sale is scheduled Tenant desires the assignment or sublease to close andbe effective (the “Assignment Date”), concurrently therewith, gives Lender all Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information concerning about the proposed transferee assignee or sublessee, including the proposed use of the Property Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (hereinafteri) grant such consent, "Buyer"(ii) as Lender would reasonably require refuse such consent, in evaluating an initial extension its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of credit the Premises, (iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises (provided that Landlord shall further have the right to a borrower review and pays approve or disapprove the proposed form of sublease prior to Lender a non-refundable application fee the effective date of any such subletting), or (iv) terminate this Lease with respect to the space described in the amount Assignment Notice as of $2,500.00the Assignment Date (an “Assignment Termination”). Lender If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Premises to any entity controlling, controlled by or under common control with Tenant (a “Control Permitted Assignment”) shall not be required, provided that Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give assign this Lease, upon 30 days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that purpose of transferring the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant assignment (a “Corporate Permitted Assignment”). A Control Permitted Assignment and Corporate Permitted Assignment are hereinafter individually and collectively referred to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of as a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and“Permitted Assignment.”
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification of the material economic terms hereof hypothecation or other transfer (other than a corresponding increase subletting), or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting (provided that Landlord shall further have the event right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authoritysubletting), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender terminate this Lease with respect to the space described in the Assignment Notice, as of the Assignment Date (an "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord's notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the terms Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled option to close and, concurrently therewith, gives Lender all such information concerning terminate this Lease shall be deemed to be Landlord's consent to the proposed transferee assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice, not to exceed $2,000 for each Assignment Notice. Notwithstanding the foregoing, Landlord's consent to an assignment of this Lease or a subletting of any portion of the Property Premises to any entity controlling, controlled by or under common control with Tenant, or acquiring substantially all of the issued and outstanding capital stock of Tenant or succeeding to all or substantially all of Tenant's assets (hereinafter, a "BuyerPERMITTED ASSIGNMENT") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall not be required, provided that Landlord shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities sublease or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andassignment.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used or stored in the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the first day proposed assignment or sublease, including a copy of any proposed sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the first calendar month after the date hereof Assignment Notice: (i) grant or the date hereof if dated the first day of a calendar month) and refuse such consent, in its sole discretion with respect to such Salea proposed assignment, Lender shall not require a modification of the material economic terms hereof hypothecation or other transfer (other than a corresponding increase subletting), or grant or refuse such consent, in Borrower's deposits into the Escrow Fund its reasonable discretion with respect to Taxes in a proposed subletting (provided that Landlord shall further have the event right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such Sale results in an increase in the real property tax assessment by the applicable taxing authoritysubletting), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender terminate this Lease with respect to the space described in the Assignment Notice, as of the Assignment Date (an “Assignment Termination”). If Landlord elects an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the terms Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled option to close and, concurrently therewith, gives Lender all such information concerning terminate this Lease shall be deemed to be Landlord’s consent to the proposed transferee assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice, not to exceed $2,000 for each Assignment Notice. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Property Premises to any entity controlling, controlled by or under common control with Tenant, or acquiring substantially all of the issued and outstanding capital stock of Tenant or succeeding to all or substantially all of Tenant’s assets (hereinaftera “Permitted Assignment”) shall not be required, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender provided that Landlord shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities sublease or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andassignment.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender A "PERMITTED TRANSFER" shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on be a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and Transfer that complies with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedconditions:
(ia) the non-transferring Stockholder(s) shall have provided prior written consent to the Transfer to such proposed transferee; PROVIDED that such consent may not be unreasonably withheld, conditioned or delayed (it being acknowledged and agreed among the parties hereto that withholding consent to a proposed transferee that is a financial investor with no default after business operations in the expiration of notice or grace periods pharmaceutical industry is then continuing hereunder, under the Note, or any of the Other Security Documentspresumed to be unreasonable);
(iib) Borrower gives Lender written notice such Transfer, when combined with any prior Transfers by such transferring Stockholder, does not cause all such Transfers by such Stockholder to exceed thirty-three and one third percent (33 1/3%) of the Shares held by such transferring Stockholder on the Effective Date of this Agreement;
(c) such transferring Stockholder shall have first provided a written offer to purchase the Shares proposed to be Transferred (the "OFFER NOTICE") to the other Stockholder(s) stating the number of Shares to be Transferred, the price and the material terms of such prospective Sale not less than concerning the Transfer as to which the non-transferring Stockholder shall have at least thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "GuarantyNOTICE PERIOD") pursuant to elect to purchase the Shares contained in the Offer Notice at such documents price and agreements as Lender upon such terms contained in the Offer Notice, PROVIDED, if such non-transferring Stockholder(s) elects to purchase any such Shares, the closing shall reasonably require take place within sixty (60) days of the date the Offer Notice is given; PROVIDED FURTHER, if such non-transferring Stockholder elects not to evidence purchase any such Shares, then such transferring Stockholder may, during the ninety (90) day period following the expiration of the Notice Period, offer and effectuate sell the Shares to any Person or Persons at a price not less than, and upon terms no more favorable to the terms specified in the Offer Notice (following such assumption and thereafter Guarantor ninety (90) day period, the right contained in this Section 3.3(c) shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;deemed revived); and
(xiid) Borrower's obligations under the contract of sale pursuant transferee shall not be conferred with any right to which the Sale is proposed to occur shall expressly be subject to the satisfaction representation of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and Company's Board nor any other special rights, powers or privileges not otherwise provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andDelaware law.
Appears in 1 contract
Sources: Stockholders' Agreement (Elite Pharmaceuticals Inc /De/)
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises (agenerally, a "Transfer"), then at least 15 business days, but not more than 30 business days, before the date Tenant desires the Transfer to be effective (the "Assignment Date"), Tenant shall give Landlord a Notice (the "Assignment Notice") Notwithstanding containing such information about the foregoing provisions of this Sectionproposed transferee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used or stored in the NotePremises, the Assignment Date, any relationship between Tenant and the proposed transferee, and all material terms and conditions of the proposed Transfer, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving Notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant or refuse such consent, in their entirety on its sole and absolute discretion, with respect to any Transfer other than a single occasion straightforward sublease of not more than 5,000 square feet of the Premises (a "SaleMinor Sublease") after the first anniversary of the first day of the first calendar month after the date hereof (), or the date hereof if dated the first day of a calendar month) and grant or refuse such consent, in its reasonable discretion, with respect to such Salea Minor Sublease, Lender shall not require a modification of the material economic terms hereof or (other than a corresponding increase in Borrower's deposits into the Escrow Fund ii) terminate this Lease with respect to Taxes the space described in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)Assignment Notice, to any person or entity provided that each as of the following terms and conditions are satisfied:
Assignment Date (i) no default after the expiration of notice or grace periods is then continuing hereunderan "Assignment Termination"). If Landlord elects an Assignment Termination, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Tenant shall have the right to approve or disapprove the proposed Buyer, such approval not withdraw its Assignment Notice by Notice to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing Landlord of such Saleelection within 5 days after Landlord's Notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, a non-refundable assumption fee this Lease shall continue in an amount equal to all out-of-pocket costs full force and expenseseffect. If Tenant does not withdraw such Assignment Notice, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standingLease, and the qualification term and estate herein granted, shall terminate as of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) Assignment Date with respect to the space described in such other matters as Lender may reasonably request;
(x) Lender Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) be deemed to be Landlord's consent to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) proposed Transfer. Tenant shall have assumed, from and after the date of such Sale, reimburse Landlord for all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all reasonable out-of-pocket expenses, including without limitation, reasonable attorney's feesup to a maximum of $1,000.00, incurred by Lender Landlord in connection with the transfer and all costs and expenses its consideration of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andAssignment Notice.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Sectionprohibitions regarding Transfers, Lender shall not unreasonably withhold consent to the simultaneous salea Permitted Transfer may occur without Lender’s prior consent, conveyance or transfer of provided that all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedmet:
(i) no default after the expiration of notice with respect to a proposed Permitted Transfer involving a greater than 5% general partnership or grace periods is then continuing hereunder, under the Notemanaging membership interest in Borrower or any constituent entity in Borrower at any level, or any a sale of the Other Security DocumentsProperty, at least 30 days prior to the proposed Permitted Transfer, Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of this Section;
(ii) Borrower gives there is no default under the Loan Documents either when Lender written receives the notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning or when the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriatePermitted Transfer occurs;
(iii) Borrower pays Lender, concurrently with the closing proposed Permitted Transfer will not result in a violation of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) any of the then outstanding principal balance covenants contained in the Section entitled, "ERISA Compliance" and Borrower will deliver to Lender such documentation of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies compliance as Lender requests in connection with the Saleits sole discretion;
(iv) Buyer (a) assumes when ▇▇▇▇▇▇ receives the notice and agrees when the proposed Permitted Transfer occurs, the transferee is not subject to any Proceeding relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors and is generally able to pay all indebtedness secured hereby its debts as and when due subject to the provisions of Article 11 of the Notethey become due, and has never been an adverse party to Lender in any litigation to which Lender was a party; the transferee has never defaulted on a loan from Lender or on any contract or other agreement with Lender; and the transferee has never threatened litigation against Lender (b) prior to or concurrently with for purposes of this subsection "transferee" includes the closing of such Sale, the Buyer executes, without any cost or expense to transferee’s constituent entities at all levels and "Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption" includes Lender’s subsidiaries);
(v) Borrower and pays all of ▇▇▇▇▇▇’s expenses relating to the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;Transfer including ▇▇▇▇▇▇’s reasonable attorneys’ fees; and
(vi) ▇▇▇▇▇▇ is satisfied that the Property will continue to be managed by a manager satisfactory to ▇▇▇▇▇▇.
(b) Upon compliance with the conditions set forth in the preceding subsection, the following Transfers (the "Permitted Transfers") may occur without Lender’s prior consent:
(i) Transfers of membership or partnership interests in Borrower or any constituent entity of Borrower at any level, provided that subsequent to the Transfer ▇▇▇▇▇▇▇ Properties, Inc. remains the managing general partner of ▇▇▇▇▇▇▇ Properties, L.P., and retains at least 51% of the general partner interests in ▇▇▇▇▇▇▇ Properties, L.P. and ▇▇▇▇▇▇▇ Properties, L.P. at all times remains in direct or indirect control of management and of at least 51% of the membership interests in Borrower and ▇▇▇▇▇▇▇▇’s managing member; and
(ii) a pledge by any partner, stockholder or member in Borrower or any constituent entity in Borrower at any level of its partnership, stock, or membership interests provided that the beneficiary of such pledge agrees not to foreclose or realize on such pledge or become a part of Borrower or any of its constituent entities at any level without Lender’s written consent pursuant to an agreement acceptable to Lender in its good faith sole discretion; provided, however, that the foregoing shall in no way be construed to apply to any of the exclusions from what constitutes a "Transfer" as set forth in the last sentence of Section 12.1(a).
(iii) a one-time sale of the Property to an unaffiliated bona fide purchaser, provided that Lender fails to exercise any right to purchase the Property Lender may have pursuant to an express provision in this Deed of Trust, and the following conditions are met:
(A) the transferee has a net worth of at least $100,000,000.00, exclusive of the Property;
(B) the transferee is an Institutional Investor or a developer or manager of first-class commercial real estate comparable to the Property and having a first class reputation in the industry;
(C) the transferee has expressly assumed the obligations of Borrower under the Property Documents and under the Loan Documents;
(D) subsequent to the Transfer, the Property is managed by a property manager satisfactory to ▇▇▇▇▇▇ who has managed first-class commercial real estate comparable to the Property for at least 10 years, and has a good reputation in the industry;
(E) Borrower has paid to Lender a transfer fee of .25% of the outstanding principal balance of the Loan which transfer fee shall not be creditable toward the Debt and shall be deemed fully earned by ▇▇▇▇▇▇; and
(i) Borrower delivers to LenderLender an instrument, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 from the indemnitor under the environmental indemnity delivered to Lender's title insurance policy insuring Lender in connection with the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnishLoan and, if applicable, from the Buyer is a corporation, partnership then existing guarantors or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification sureties of any of the signers to execute Obligations acknowledging the assumption of Transfer and ratifying their continued obligations under the indebtedness secured herebyindemnity, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entitiesguaranty or surety instrument, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer or (if the Buyer is a corporationii) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign delivers to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide a substitute for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect environmental indemnity delivered to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long Loan and, if applicable, a substitute guaranty or surety instrument, satisfactory to Lender, executed by a substitute indemnitor, guarantor or surety, as the terms and conditions set forth in Sections 8.4(a)(i)case may be, (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andin its sole discretion.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined in below), then at least 15 business days, but not more than 45 business days, before the Notedate Tenant desires the assignment or sublease to be effective (“Assignment Date”), Tenant shall give Landlord a notice (“Assignment Notice”) in their entirety on a single occasion (a "Sale") after containing such information about the first anniversary proposed assignee or sublessee, including the proposed use of the first day Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in, or disposed of from the first calendar month after Premises, the date hereof (Assignment Date, any relationship between Tenant and the proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final or substantially final form, and such other information as Landlord may reasonably deem necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Notegrant such consent, or any of the Other Security Documents;
(ii) Borrower gives Lender refuse such consent, such consent not to be unreasonably withheld, conditioned, or delayed (provided that Landlord shall further have the right to review and reasonably approve or disapprove the proposed form of sublease prior to the effective date of any such subletting). If Landlord fails to timely deliver to Tenant notice of Landlord’s consent or refusal to consent to a proposed assignment or sublease, Tenant may send a second written notice requesting consent to such proposed assignment or sublease to the 9▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇—TCR2 Therapeutics Inc.—Page 24 recipients identified in the Basic Lease Provisions for notices to Landlord under this Section via a reputable overnight delivery service providing receipted evidence of delivery. If Landlord does not respond within 5 business days after receipt of such second notice, such request for such proposed assignment or sublease shall be deemed to have been approved by Landlord. Such second notice shall state the following in 10-point or larger in bold face type in capitalized letters: LANDLORD’S FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS REQUEST SHALL MEAN THAT LANDLORD HAS BEEN DEEMED TO HAVE APPROVED THE REQUEST FOR THE ASSIGNMENT OF SUBLEASE DESCRIBED IN THIS REQUEST. Tenant shall pay to Landlord a fee equal to $1,500 in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. Any transfer to an assignee, subtenant, or other transferee in accordance with this Section that is approved (or deemed approved) by Landlord is hereinafter referred to as an “Approved Assignment.” Notwithstanding any contrary provision contained in this Lease, Landlord’s consent shall not be required to an assignment of this Lease or a subletting of all or any portion of the terms of such prospective Sale not less than thirty Premises to the following (30a “Permitted Assignment”): (1) days before the date on which such Sale is scheduled to close andany entity controlling, concurrently therewithcontrolled by, gives Lender all such information concerning the proposed transferee of the Property (hereinafteror under common control with Tenant, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender provided that Landlord shall have the right to reasonably approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience assignment and track record that Tenant notifies Landlord in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing writing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing Permitted Assignment within 10 days of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Notetransaction, and (b2) prior a corporation or other entity that is a successor-in-interest to Tenant, by way of merger, consolidation, or concurrently with corporate reorganization, or by the closing purchase of such Sale, the Buyer executes, without any cost all or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time substantially all of the Saleassets or the ownership interests of Tenant provided that (i) such merger or consolidation, all in form and substance satisfactory to Lenderor such acquisition or assumption, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) above, (B) that the assumption purpose of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, transferring this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entityLease, and (Eii) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andassignment.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding Permitted Transfer of the foregoing provisions of this SectionProperty. From and after the date that is one year after the Closing Date, Lender shall not unreasonably withhold its consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on Property to a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity Permitted Transferee provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(iia) Borrower gives shall give Lender written notice of the terms of such prospective Sale Transfer request not less than thirty sixty (3060) days before the date on which such Sale is scheduled prior to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee date of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower such Transfer and pays pay to Lender a non-refundable application processing fee in the amount of $2,500.00. 25,000, (b) Lender has received a Rating Agency Confirmation as to the conveyance of the Property to the Permitted Transferee, (c) Lender has received an agreement, acceptable to it in its sole discretion, pursuant to which Permitted Transferee assumes all of Borrower's obligations under the Loan Documents, (d) Lender receives a transfer fee equal to (1) for the first assumption, 0.5% of the then-outstanding amount of the Loan (but in no event less than $15,000) and (2) for any subsequent assumption, 1% of the then-outstanding amount of the Loan (but in no event less than $15,000), (e) Lender shall have received such documents, certificates and legal opinions as it may reasonably request, (f) no Event of Default or event which with the right to approve giving of notice or disapprove the proposed Buyer, such approval not to be unreasonably withheld passage of time or delayed. In determining whether to give or withhold both would constitute an Event of Default shall have occurred and remain uncured; (g) the Permitted Transferee and its approval property manager shall have sufficient experience in the ownership and management of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities properties similar to the Property, and Lender shall be provided with reasonable evidence thereof (and Lender reserves the Buyer's financial strengthright to approve the Permitted Transferee without approving the substitution of the property manager); (h) the Permitted Transferee shall have executed and delivered to Lender an assumption agreement in form and substance acceptable to Lender, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lenderevidencing such Permitted Transferee's agreement to consider abide and be bound by 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 terms of the Note, this Agreement and (b) prior to or concurrently with the closing other Loan Documents and an Affiliate of such SalePermitted Transferee acceptable to 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 Buyer executes, without any cost or expense to foregoing as may be reasonably required by Lender, together with such documents legal opinions and agreements title insurance endorsements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents may be reasonably requested by Lender;
; and (vii) Borrower delivers prior to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time release of the SaleGuarantor, all in form and substance a substitute guarantor acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender, including, without limitation, an endorsement . Notwithstanding the foregoing or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title anything herein to the Property contrary, Borrower may not exercise its rights pursuant to this Section 8.1 during the period that commences on the date that is vested in sixty (60) days prior to the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification date of any intended Securitization of the signers to execute Loan and ending on the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer date that is sixty (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation60) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and days after the date of such Sale, all Securitization of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andLoan.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions limitations in Section 3.2(a) of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedAgreement:
(i1) no default after Holdings may Transfer or otherwise grant Encumbrances in all, but not a portion of, its Membership Interest and ownership or equity interests in the expiration of notice or grace periods is then continuing hereunderCompany to ▇▇▇▇▇ & ▇▇▇▇▇ HEALTHCARE REIT, under the NoteINC., or any Affiliate of ▇▇▇▇▇ & ▇▇▇▇▇ HEALTHCARE REIT, INC. or Holdings and at the election of Holdings, upon any such Transfer of the Other Security Documents;
entire Membership Interest, the transferee thereof shall be admitted as a Member. In addition, Duke acknowledges that it has been advised that Holdings may Transfer its Membership Interests to a publicly registered company or the subsidiary of a publicly registered company that is managed by, sponsored by or under common control with Holdings or Holdings’ principals or Registered Company and that in such event the assignee will be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year (the “Audited Year”) and the current fiscal year through the date of acquisition (the “Stub Period”) for the Property. As used herein, the term “Registered Company” shall mean a publicly registered company or the subsidiary of a publicly registered company that is managed by, sponsored by or under common control with Holdings or Holdings’ principals. To assist the assignee in preparing the SEC Filings, Duke agrees to provide the assignee with the following: (i) access to bank statements for the Audited Year and Stub Period; (ii) Borrower gives Lender written notice rent roll as of the terms end of such prospective Sale not less than the Audited Year and Stub Period; (iii) operating statements for the Audited Year and Stub Period; (iv) access to the general ledger for the Audited Year and Stub Period; (v) cash receipts schedule for each month in the Audited Year and Stub Period; (vi) access to invoices for expenses and capital improvements in the Audited Year and Stub Period; (vii) accounts payable ledger and accrued expense reconciliations in the Audited Year and Stub Period; (viii) check register for the three (3) months following the Audited Year and Stub Period; (ix) the Lease and five (5) year lease schedules, to the extent applicable; (x) copies of all insurance documentation for the Audited Year and Stub Period; (xi) copies of accounts receivable aging as of the end of the Audited Year and Stub Period along with an explanation for all accounts over thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee past due as of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval end of the proposed Buyer, Lender shall consider the Buyer's experience Audited Year and track record in owning Stub Period; and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under a signed representation letter in the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth form attached hereto as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andExhibit D.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Grubb & Ellis Healthcare REIT, Inc.)
Permitted Transfers. Notwithstanding anything to the contrary in Paragraphs 21.A through 21.C above, and provided Tenant is not in default of this Lease beyond the applicable notice and cure period, Landlord hereby agrees that: (1) Landlord shall consent to Tenant’s assigning or subletting said Lease to: (i) any parent or subsidiary corporation, or corporation with which Tenant merges or consolidates provided said entity’s use of the Premises is the same as Tenant’s use and that (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance said affiliate or transfer of successor owns all or substantially all of the Individual Properties (as defined in assets of Tenant and becomes jointly and severally liable with Tenant for the Note) in their entirety on a single occasion (a "Sale") after Term of this Lease from the first anniversary of Lease Commencement Date through the first day of the first calendar month after the date hereof scheduled Lease Termination Date (or the extended Lease Termination Date if said date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authorityis extended), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior the net worth of said parent or subsidiary corporation, or said surviving corporation is equal to or concurrently with greater than Tenant’s net worth (x) at the closing of such Sale, the Buyer executes, without any cost Commencement Date or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(vy) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Salesuch assignment, 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, or consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
whichever is greater (viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000collectively “Permitted Transfers”), and (c) include evidence reasonably satisfactory Tenant shall give Landlord written notice at least thirty (30) days prior to Lender that the effective date of the proposed purchase, merger, consolidation or reorganization (unless such thirty (30)-day notice would be in violation of contract or applicable provisions law, in which case, said notice will be given immediately following the expiration date of Section 8.4 hereof have been satisfied. In connection with any such transfer legal restriction; a Permitted Transfer includes a sublease to an Affiliateany company with which Tenant is then collaborating on product design, Key Principal development, production or marketing (“Tenant Business Partners”) if the following criteria are met: (i) the subtenant’s right to possession must be conditioned upon it remaining one of Tenant’s Business Partners; (ii) amounts payable thereunder are for recovery of Tenant’s costs only, with no profit or ▇▇▇▇-up; (iii) there are no more than four (4) subleases in effect with Tenant Business Partners at any point in time; (iv) no more than 4,000+ square feet of the Premises is subject to subleases with Tenant Business Partners; and (v) each of Tenant’s Business Partners must assume as to the subleased space all obligations of Tenant under this Lease (other than the obligation to pay Rent) and each such Tenant Business Partner shall assumebe required to execute a consent to sublease agreement between Landlord, Tenant and the respective Tenant Business Partner. Multi Tenant/Single Parcel Page 24 of 55 Initial: /S/ JA; RP; VP No such assignment or subletting or sale of stock will release the Tenant from its liability and after responsibility under this Lease. Notwithstanding the above, Tenant shall be required to (a) give Landlord written notice prior to such assignment or subletting or sale of stock to any party as described above, (b) execute Landlord’s consent document prepared by Landlord reflecting the assignment or subletting and (c) pay Landlord’s reasonable costs for processing said Consent prior to the effective date of such transfer, said assignment or sublease. Nothing herein shall be deemed to permit (i) any assignee to further assign this Lease or sublet all or any portion of the obligations of Guarantor under Premises or (ii) any subtenant to assign its interest in the Environmental Indemnity and sublease or further sublet the Guaranty pursuant Premises to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andany other party, in each case without Landlord’s prior written consent.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Subject to the simultaneous sale, conveyance or transfer Sublessor’s right to terminate this Sublease in the event of all of the Individual Properties a Permitted Transfer (as defined below) to a Competitor (as defined below), provided no event of default has occurred and is continuing under this Sublease, upon prior written notice to Sublessor and Landlord (except to the extent prohibited by applicable securities or other laws or regulations or confidentiality requirements in the Noteany applicable agreements, in which event such notice shall be given following such Permitted Transfer, and Sublessee shall use commercially reasonable efforts to provide such notice no later than fifteen (15) in their entirety on a single occasion (a "Sale") days after the first anniversary effective date of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such SalePermitted Transfer, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase but in Borrower's deposits into the Escrow Fund with respect to Taxes in the any event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity notice shall be provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less later than thirty (30) days before after the effective date on of such Permitted Transfer), Sublessee may, without Sublessor’s prior written consent (but Sublessee shall still be required to obtain Landlord’s consent under the Primary Lease), assign this Sublease to an entity into which Sublessee is merged or consolidated or assign this Sublease or sublease the Premises to an entity to which substantially all of Sublessee’s assets are transferred or to an entity that is controlling, controlled by or commonly controlled with Sublessee (any such Sale sublease or assignment being a “Permitted Transfer” and any assignee or sublessee pursuant to a Permitted Transfer is scheduled referred to close andherein as a “Permitted Transferee”), concurrently therewithprovided (i) such merger, gives Lender all consolidation, or transfer of assets is for a good faith business purpose and not principally for the purpose of transferring Sublessee’s sublease estate and (ii) the assignee or successor entity has a tangible net worth, calculated in accordance with generally accepted accounting principles (and evidenced by financial statements in form reasonably satisfactory to Sublessor and Landlord) at least equal to the tangible net worth of Sublessee immediately prior to such information concerning merger, consolidation, or transfer. In connection with any Permitted Transfer, Sublessee shall provide a written certification as to whether the proposed transferee assignee or sublessee is a Competitor. In the event Sublessee desires an updated Competitor list from Sublessor, then Sublessee shall have the right (but not the obligation) to provide Sublessor with a Marketing Notice (as defined below) prior to any contemplated Permitted Transfer in order to have Sublessor provide its updated Competitor list. The term “controlled by” or “commonly controlled with” or “controlling” shall mean the possession, direct or indirect, of the Property power to direct or cause the direction of the management and policies of such controlled person or entity; the ownership, directly or indirectly, of at least fifty-one percent (hereinafter51%) of the voting securities of, "Buyer") as Lender would reasonably require in evaluating an initial extension or possession of credit the right to a borrower and pays to Lender a non-refundable application fee vote, in the amount ordinary direction of $2,500.00its affairs, at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control. Lender For the avoidance of doubt, Sublessee shall be required to obtain Landlord’s consent with respect to any Permitted Transfer. In the event of any Permitted Transfer to an entity that is a Competitor, then, at Sublessor’s option, Sublessor shall have the right to approve or disapprove terminate this Sublease following such Permitted Transfer by providing written notice to Sublessee, with the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval termination date being the earlier of the effective date of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give Permitted Transfer 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any following the date that Sublessor delivers such transfertermination notice to Sublessee. In the event Sublessor delivers such termination notice to Sublessee, deliver to Lender written notice Sublessee may, at its option, rescind such Permitted Transfer within five (5) business days of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000)receipt, and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal Sublease shall assume, from continue unmodified between Sublessor and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andSublessee.
Appears in 1 contract
Permitted Transfers. In the event Landlord consents to any Transfer, Landlord may require that such Transferee remit directly to Landlord (aon a monthly basis) Notwithstanding all monies due to Tenant by such Transferee. As a material part of the foregoing provisions consideration due to Landlord for considering any assignment, encumbrance or subletting, Tenant shall pay Landlord’s costs and attorneys’ fees incurred in connection with approving, enforcing or administering a proposed or consummated Transfer. In addition, Tenant shall indemnify, protect, defend and hold harmless Landlord against any claim, whether the subject of a lawsuit or not, arising out of the proposed or executed Transfer. In the event Tenant receives Rent or other consideration from any Transferee, either initially or over the term of the Transfer, in excess of the Rent required hereunder (or in the case of a sublease of a portion of the Premises, in excess of such Rent fairly allocable to such portion), Tenant shall immediately pay to Landlord as Additional Rent fifty percent (50%) of the Profits, as defined in Article 17.5 This liability is joint and several with the assignee or subtenant. Tenant hereby acknowledges that Landlord’s waiver or consent to any Transfer shall in no event relieve Tenant from its obligations under this Lease and is not a consent to further Transfer. In addition, Tenant hereby acknowledges that no Transfer hereunder shall be deemed to comply with this Article 17 unless such Transferee executes an agreement in form and content acceptable to Landlord to faithfully perform and be bound by all of the terms, covenants and conditions of this Section, Lender Lease. Such executed agreement and Transfer shall be delivered to Landlord within five (5) days after execution thereof and said Transfer shall not unreasonably withhold consent be effective until Landlord’s acknowledged receipt thereof. Landlord hereby reserves the right to require such Transferee to pay a security deposit which shall be held by Landlord as security for the simultaneous sale, conveyance or transfer faithful performance by such Transferee of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms covenants and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower Lease. Such deposit shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests held and administered by Landlord in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but accordance with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andArticle 7.
Appears in 1 contract
Sources: Lease Agreement (Rentech Inc /Co/)
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Section 10.2 or anything else to the simultaneous salecontrary contained in this Agreement, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
Transfers (i) no default after the expiration of notice or grace periods is then continuing hereundereach, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close a “Permitted Transfer” and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertycollectively, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval “Permitted Transfers”) shall be given or withheld based on what Lender determines to be commercially reasonable andpermitted without Administrative Agent’s prior written consent thereto, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender but shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions precedent set forth below:
(i) The acquisition of the Property (or any portion thereof) by any Person in connection with the exercise of remedies by Mortgage Administrative Agent or Mortgage Lenders under the Mortgage Loan Documents;
(A) The pledge by Borrower of its direct Equity Interest in Mortgage Borrower to Administrative Agent pursuant to the Loan Documents; and (B) the acquisition of such Equity Interests by any Person in connection with the exercise by Administrative Agent or any Lender of remedies under the Loan Documents in accordance with the terms of the Intercreditor Agreement;
(iii) [Intentionally Omitted];
(iv) Leases entered into in accordance with the terms and conditions of the Loan Documents and the Mortgage Loan Documents;
(v) Transfers that occur upon the death or incapacity of a natural person that was the holder of such interest by will or devise, or by operation of law to a member of the immediate family of such interest holder or a trust (or other entity) or family conservatorship established for the benefit of such immediate family member; and
(vi) Transfers (but not pledges, collateral assignments, hypothecations, or encumbrances) (A) of up to forty-nine percent (49%) (in the aggregate) of the direct or indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower (excluding managing member and general partner interests, if applicable) to one or more Persons who did not own direct or indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower as of the Closing Date; (B) for bona fide estate planning purposes to any trust or trusts for the benefit of any one or more of the foregoing persons described in this Section 8.4;clause (v); (C) necessary for compliance with ERISA; (D) of direct or indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower to and among Persons owning direct or indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower as of the Closing Date; (E) of preferred interests in any real estate investment trust owning a direct or indirect interest in Borrower, Hotel Lessee or Mortgage Borrower required in order to maintain such Person’s status as a real estate investment trust; or (F) of non-controlling limited partnership or membership interests in an investment fund.
(b) Notwithstanding the foregoing provision of this Any Transfer (other than a Permitted Transfer described in Section and provided Borrower has 10.3(a)(ii)(B) above) that would cause a transferee (together with its Affiliates) who did not exercised its right to sell, convey previously own 20% or transfer all more of the Individual Properties pursuant indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower to own twenty percent (20%) or more of the indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower shall be subject to Administrative Agent’s customary “Know Your Customer” searches and requirements (including credit history check, litigation, bankruptcy, judgment and other customary searches, which searches shall be satisfactory to Administrative Agent in its reasonable discretion).
(c) With respect to the applicable Permitted Transfers described in Section 8.4(a10.3(a) above, the following conditions must also be satisfied:
(A) no Event of Default shall then exist and be continuing;
(B) subsequent to each such Transfer, the following conditions have been satisfied: (a) the Control Requirement shall be satisfied, and (b) any transferee shall satisfy each Lenders’ Patriot Act/Know-Your Customer compliance requirements;
(C) each SPE Entity will continue to be a Single Purpose Entity, Borrower will continue to own one hundred percent (100%) of the direct Equity Interests in Mortgage Borrower (except as otherwise set forth in Section 10.3(a)(ii)), Mortgage Borrower will continue to own one hundred percent (100%) of the direct Equity Interests in Hotel Lessee, and such Transfer will not result in the termination or dissolution of Borrower, Hotel Lessee or Mortgage Borrower, by operation of law or otherwise;
(D) Borrower shall be permittedhave reimbursed Administrative Agent for all reasonable, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses (including reasonable attorneys’ fees and expenses, including without limitation, reasonable attorney's fees, ) actually incurred by Lender Administrative Agent in connection with such Transfer;
(E) upon request from Administrative Agent, Borrower shall promptly provide Administrative Agent with a revised version of the organizational chart delivered to Administrative Agent in connection with the transfer and all costs and expenses closing of all third parties and Rating Agencies in connection the Loan to the extent necessary to reflect changes thereto;
(F) if notice to Administrative Agent is not otherwise required pursuant to separate provisions under this Agreement, Borrower shall give Administrative Agent written notice of such Transfer together with an Officer’s Certificate certifying that the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are requirements of this Section 10.3 have been satisfied. Borrower shall, not less than thirty ten (3010) days before Business Days prior to the date of such Transfer; provided, however, that the foregoing requirement shall not apply to any Transfer described in clause (iv) of Section 10.3(a) above; provided, further, that if Borrower fails to so notify Administrative Agent of any such transferTransfer, deliver to Lender such failure may be remedied by Borrower by providing Administrative Agent with written notice of such transfer which Transfer and such other materials required pursuant to this subclause (F) promptly upon notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andfailure from Administrative Agent.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (NRI Real Token Inc.)
Permitted Transfers. (a) Notwithstanding If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the foregoing provisions of this Section, Lender shall not unreasonably withhold consent Premises other than pursuant to the simultaneous sale, conveyance or transfer of all of the Individual Properties a Permitted Assignment (as defined below), then at least 15 business days, but not more than 120 days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials, if any, proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its current draft (along with revised drafts as the same are updated and, when ready, the proposed final form), and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice along with all required information: (i) grant such consent, or (ii) refuse such consent, in its reasonable discretion. Among other reasons, it shall be reasonable for Landlord to withhold its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or subtenant would entail any alterations that would lessen the value of the leasehold improvements in the Note) in their entirety on a single occasion (a "Sale") after Premises, unless Tenant agrees, if requested to do so by Landlord, to restore the first anniversary Premises to its condition prior to such alteration before the expiration of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) Term and Tenant provides Landlord with respect security reasonably satisfactory to Landlord to secure such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes obligation in the event Tenant fails to perform such Sale results obligation; (3) Landlord has experienced previous material defaults by or is in litigation with the proposed assignee or subtenant; and (4) the proposed assignee or subtenant is an increase entity with whom Landlord is then negotiating to lease space in the real property tax assessment Project (as evidenced by an exchange of proposals). Landlord shall respond to each of Tenant’s Assignment Notice requests within 15 business days after Landlord’s receipt of such Assignment Notice request along with all documentation required to be delivered hereunder. If Landlord fails to respond within such 15 business day period, then Tenant shall provide Landlord with a second written notice stating in bold and all caps 12 point font that Landlord’s failure to respond to Tenant’s Assignment Notice request within 5 business days after Landlord’s receipt of the applicable taxing authoritysecond notice shall be deemed approval by Landlord, and if Landlord does not respond within such 5 business day period, then Landlord shall be deemed to have approved such Assignment Notice request. Tenant shall reimburse Landlord for Landlord’s reasonable out-of-pocket expenses incurred in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents (not to exceed $2,500 per Assignment Notice request). Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Premises to any person entity controlling, controlled by or entity under common control with Tenant (a “Control Permitted Assignment”) shall not be required, provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and5200 Research Place/Illumina — Page 28
Appears in 1 contract
Sources: Lease Agreement (Illumina Inc)
Permitted Transfers. The City agrees to timely consent to the following Transfers of ▇▇▇▇▇’s interest in this Lease:
(a) Notwithstanding Subject to the foregoing City’s right of first refusal in Section 5.5, a Transfer of all, but not less than all, of ▇▇▇▇▇’s interest in this Lease and the entire Complex to an Acceptable Tenant through the process set forth in Exhibit C.
(b) Subject to the City’s right of first refusal in Section 5.5 and the additional provisions of this SectionSection 5.8, Lender shall a Transfer of all, but not unreasonably withhold consent to the simultaneous saleless than all, conveyance or transfer of all of the Individual Properties (as defined ▇▇▇▇▇’s leasehold interest in the Note) Restaurant and the Restaurant Property, and such portion of its leasehold interest in their entirety on a single occasion (a "Sale") the Parking Lot as it may determine so long as after the first anniversary of Transfer both the first day of Restaurant and the first calendar month after Hotel comply with then existing Governmental Requirements regarding vehicle parking and access (collectively the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority“Total Restaurant”), to any person or entity provided that each of an Acceptable Tenant through the following terms and conditions are satisfied:process set forth in Exhibit C.
(ic) no default after Subject to the expiration City’s right of notice or grace periods is then continuing hereunderfirst refusal in Section 5.5 and the additional provisions of Section 5.8, under the Notea Transfer of all, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale but not less than thirty (30) days before the date on which such Sale is scheduled to close andall, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee JoePC’s leasehold interest in the amount of $2,500.00. Lender shall have Hotel and the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Hotel Property, and in such portion of its leasehold interest in the Buyer's financial strengthParking Lot as it may determine so long as after the transfer both the Restaurant and the Hotel comply with then existing Governmental Requirements regarding vehicle parking and access (collectively, the Buyer's general business standing and “Total Hotel”), to an Acceptable Tenant through the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors process set forth 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;Exhibit C.
(iiid) Borrower pays Lender, concurrently A Transfer of ▇▇▇▇▇’s interest in this Lease to an Institutional Investor only as security for a loan of money if in strict compliance with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding Article VI. Each of the forgoing transfers shall be referred to as a “Permitted Transfer” and each of the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower transferees shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof referred to as a “Permitted Transferee.” Upon any Permitted Transfer (except to an Institutional Investor or the date hereof if dated the first day of to a calendar monthDefault Tenant), to transfer or convey all JoePC shall be released from any of its interests in all of obligations under this Lease assumed by the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and Acceptable Tenant arising after the date of such transferTransfer. Upon any Permitted Transfer (except to an Institutional Investor or to a Default Tenant), all if the Acceptable Tenant is an independent third-party unrelated to St. ▇▇▇, then St. ▇▇▇ shall be released from its obligations under the Guaranty arising after the date of Transfer relating to the obligations of Guarantor under this Lease assumed by the Environmental Indemnity and Acceptable Tenant. Upon request by ▇▇▇▇▇ or ▇▇. ▇▇▇, the Guaranty pursuant City agrees to such documents and agreements as Lender promptly execute a release agreement evidencing the same. The City shall reasonably require not be entitled to evidence and effectuate such assumption andshare in any profit or proceeds received by JoePC from a Permitted Transfer. All Transferees, whether an Acceptable Tenant or a Default Tenant or an Institutional Investor, shall be subject to the City’s option to purchase this Lease set forth in Section 14.2.
Appears in 1 contract
Sources: Ground Lease
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties In connection with any proposed Permitted Transfer (as defined in the NoteRights Agreement) in their entirety on a single occasion by Henkel America, Henkel America shall deliver to Loctite no later than 30 days prior to the Transfer Date (a "Sale"as defined below) after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to for such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
proposed Permitted Transfer (i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of such proposed Permitted Transfer (the terms "Transfer Notice"), setting forth (A) the number of such prospective Sale not less than thirty shares of Common Stock proposed to be transferred, (30B) days before the identity of the proposed transferee (the "Proposed Transferee"), including the beneficial owners thereof to the extent known or reasonably determinable by Henkel America, and (C) the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee Permitted Transfer is to be consummated (the "Transfer Date") and (ii) an agreement substantially in the form of Exhibit A-1 to the Rights Agreement, duly and validly executed on behalf of the Property Proposed Transferee (hereinafterthe "Transferee Agreement"). Upon receipt by Loctite of the Transferee Agreement duly executed and delivered by the Proposed Transferee, "Buyer"Loctite shall duly execute and deliver the Transferee Agreement.
(b) As soon as Lender would reasonably require in evaluating practicable after receipt of the Transfer Notice, the Outside Directors shall evaluate whether the Proposed Transferee is an initial extension of credit to a borrower and pays to Lender a non-refundable application fee Adverse Person (as defined in the amount of $2,500.00Rights Agreement). Lender Henkel America shall provide the Outside
(c) Subject to Section 6.1(d) hereof, a proposed Permitted Transfer may be consummated on the Transfer Date as set forth in the Transfer Notice and the Transferee Agreement related to such proposed Permitted Transfer unless the Outside Directors shall have determined that the right Proposed Transferee related to approve or disapprove the such proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar Permitted Transfer is an Adverse Person no later than five days prior to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesTransfer Date for such proposed Permitted Transfer; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors that Henkel America complies with its obligations 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;
(iiiSections 6.1(a) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior hereof.
(d) With respect to or concurrently with any proposed Permitted Transfer, the closing Proposed Transferee shall be deemed to be an Adverse Person for purposes of the Rights Agreement unless there is at least one Director that is an Outside Director during the period from and including the date Loctite receives a Transfer Notice in respect of such Sale, proposed Permitted Transfer to and including the Buyer executes, without Transfer Date for such proposed Permitted Transfer. Except as required by applicable law or order of any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership court or other entitygovernmental authority, all appropriate papers evidencing the Buyer's capacity Loctite covenants and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) agrees that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer it will not be consolidated with the assets of take any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect action to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or cause there to be assigned to fewer than one Outside Director on the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to Board at any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andtime.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding On or after January 1, 1997, the foregoing provisions of provision set forth in this Section, Lender Section 2 shall not unreasonably withhold consent apply: (i) to any Transfer of Shares from a Shareholder to a spouse, parent, sibling, child or grandchild of such Shareholder, or to any personal representative appointed by a court of competent jurisdiction of a Shareholder, or to a trust established by or for the simultaneous sale, conveyance or transfer benefit of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion such Shareholder (a "SalePermitted Transferee") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of anyone deemed a calendar month) and with respect to such SalePermitted Transferee, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunderany such Permitted Transferee executes a document, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 Lenderthe Company, including, without limitation, an endorsement or endorsements agreeing to Lender's title insurance policy insuring be bound as a Shareholder by the lien terms of this Security Instrument insuring that fee simple title Agreement, (ii) to any Transfer of Shares registered with the United States Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act") or any similar body in any jurisdiction other than the United States or (iii) to any Transfer of Shares after the Shares have become readily tradable on an established securities market. Notwithstanding anything to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyercontrary herein, in the event of bankruptcy the death of a Shareholder at a time when Shares are not readily tradable on an established securities market, the Company, if requested, will reasonably assist the estate of the deceased Shareholder in achieving sufficient liquidity to pay any estate taxes in respect of the Shares held by the estate, through a sale, at fair market value, or insolvency pledge of such Shares, or through other means, and the Company shall consent to a pledge of the Shares to a pledgee satisfactory to the Company in its reasonable judgment. In the event of a default requiring such pledgee to sell pledged Shares, such pledgee shall become a Permitted Transferee subject to the provisions of this paragraph. In the event of any such entityPermitted Transfers by sale, and (E) gift or otherwise, the value per share for all purposes with respect to such other matters as Lender may reasonably request;
transfer shall be, for the period January 1, 1997 through December 31, 1997, 6.11 times the annualized after-tax earnings per share of the Company for the preceding (x4) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities quarters or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from available portion thereof. On and after January 1, 1998, the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor value per share shall be released from all liabilities and obligations under 6.11 times the Environmental Indemnity and after-tax earnings for the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andlatest completed fiscal year.
Appears in 1 contract
Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions of this Sectionproposed assignee or sublessee, Lender shall not unreasonably withhold consent to including the simultaneous sale, conveyance or transfer of all proposed use of the Individual Properties (as defined Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Note) in their entirety on a single occasion (a "Sale") after Premises, the first anniversary of Assignment Date, any relationship between Tenant and the first day of the first calendar month after the date hereof (proposed assignee or the date hereof if dated the first day of a calendar month) sublessee, and with respect to such Sale, Lender shall not require a modification of the all material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfied:
of the proposed assignment or sublease, including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) no default after the expiration of notice or grace periods is then continuing hereundergrant such consent, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of refuse such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close andconsent, concurrently therewithin its reasonable discretion, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
22 (b) Notwithstanding provided that Landlord shall further have the foregoing provision of this Section and provided Borrower has not exercised its right to sellreview and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), convey or transfer (iii) if the proposed transaction is a sublease that is not a Permitted Assignment or Qualified Assignment (each as defined below) and the subletting concerns (together with all other then effective subleases) 50% or more of the Individual Properties pursuant Premises, terminate this Lease with respect to Section 8.4(a) abovethe space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Borrower Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be permitteddeemed to be Landlord’s consent to the proposed assignment, after the first anniversary of the first day of the first calendar month after the date hereof (sublease or the date hereof if dated the first day of other transfer. Tenant shall pay to Landlord a calendar month), fee equal to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Three Thousand Five Million Hundred Dollars ($25,000,0003,500) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with its consideration of any Assignment Notice and/or its preparation or review of any consent documents. Notwithstanding the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i)foregoing, (iv)A) Tenant shall have the one-time right to assign this Lease or sublease the Premises under this Lease, (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) upon 30 days before any such transfer, deliver to Lender prior written notice of to Landlord and without Landlord’s prior written consent, to an entity that meets the following requirements (such transfer which notice shall assignment or subletting, a “Qualified Assignment”): (i) describe Flagship Pioneering, Inc. owns or controls more than 50% of the proposed transfer shares or other ownership interests in reasonable detailsuch assignee or subtenant entity (the “Qualified Assignee”), (ii) include evidence Tenant reasonably satisfactory demonstrates to Lender Landlord that the proposed transferee is an Affiliate Qualified Assignee has the financial capability to perform the obligations of Borrower Tenant under the Lease for the remainder of the Term, (iii) prior to the effective date of such assignment or sublease, such Qualified Assignee and Landlord or its affiliate (the “ARE Investing Entity”) execute and deliver a Participation Rights Agreement in substantially the same form as the Participation Rights Agreement dated on or about the date hereof between Tenant and Alexandria Venture Investments, LLC (the “Assignee PRA”), pursuant to which Assignee PRA, the Qualified Assignee shall grant the ARE Investing Entity the right, but not the obligation, to purchase up to $2,000,000 (or such other amount as may be mutually agreed in writing by the ARE Investing Entity and Qualified Assignee), of New Securities (as defined below) that such Key Principal has Qualified Assignee sells in its next bona fide, private financing round following the date of the Assignee PRA, at a net worth price per share and on other terms and conditions that are no less favorable to the ARE Investing Entity than those upon which the New Securities are sold by such Qualified Assignee to any other investor in such financing round, (iv) Tenant and the Qualified Assignee shall each provide to Landlord evidence of not less than Twenty-Five Million Dollars ($25,000,000)such action of its board of directors or other governing body authorizing the transactions described herein, and (cv) include evidence reasonably satisfactory such Qualified Assignee and any subsequent assignee or subtenant thereof shall not have any rights to Lender that extend the applicable provisions Base Term of this Lease under Section 8.4 hereof 39: and (B) Tenant shall have been satisfied. In connection with any such transfer the right to an Affiliateassign this Lease or sublease the Premises under this Lease, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andupon 30
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent anything to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined contrary contained in the Note) in their entirety on Section entitled “Events of Default”, a single occasion (a "Sale") after the first anniversary Permitted Transfer may occur without ▇▇▇▇▇▇’s prior consent and will not constitute an Event of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such Sale, Lender shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity Default provided that each of the following terms and conditions are satisfiedmet:
(i) no default after at least 30 days prior to the expiration proposed Permitted Transfer, ▇▇▇▇▇▇▇▇ delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsthis Section;
(ii) Borrower gives there is no default under the Loan Documents either when Lender written receives the notice of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning or when the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriatePermitted Transfer occurs;
(iii) Borrower pays Lender, concurrently with the closing proposed Permitted Transfer will not result in a violation of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) any of the then outstanding principal balance covenants contained in the Section entitled, “ERISA Compliance” and Borrower will deliver to Lender such documentation of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies compliance as Lender requests in connection with the Saleits sole discretion;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as when Lender receives the notice and when due subject the proposed Permitted Transfer occurs, the transferee has never been an adverse party to Lender in any litigation to which Lender was a party; the provisions transferee has never defaulted on a loan from Lender or on any contract or other agreement with Lender; and the transferee has never threatened litigation against Lender (for purposes of Article 11 this subsection “transferee” includes the transferee’s constituent entities at all levels and “Lender” includes Lender’s subsidiaries); the transferee is free from bankruptcy; transferee (including any affiliates of the Note, transferee) is not a Prohibited Person and (b) prior is not in violation of any Laws relating to terrorism or concurrently money laundering and Borrower provides Lender with the closing of such Sale, the Buyer executes, without any cost or expense a certification to that effect executed by an entity satisfactory to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and pays all of ▇▇▇▇▇▇’s expenses relating to the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by LenderTransfer including ▇▇▇▇▇▇’s attorneys’ fees;
(vi) Borrower delivers ▇▇▇▇▇▇ is satisfied that the Property will continue to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance be managed by a manager satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument insuring that fee simple title to the Property is vested in the Buyer▇▇▇▇▇▇;
(vii) Buyer shall furnishOn the date of the proposed Permitted Transfer, if so requested by ▇▇▇▇▇▇, a Uniform Commercial Code search report is delivered to Lender relating to (i) the Buyer is a corporationtransferee, partnership (ii) any predecessor entity that transferee merged with or other entity, all appropriate papers evidencing the Buyer's capacity and good standinginto, and the qualification (iii) any entity where transferee acquired substantially all of its assets, in each case satisfactory to Lender and indicating that ▇▇▇▇▇▇’s security interest in such portion of the signers Property as is perfected by filing a financing statement is prior to execute all other security interests reflected in the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;report; and
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign pays to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion a transfer fee of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee of the outstanding Principal, plus Lender’s processing and legal fees.
(but b) Upon compliance with payment the conditions set forth in the preceding subsection, the following Transfers (the “Permitted Transfers”) may occur without Lender’s prior consent and will not constitute Events of all outDefault:
(i) a one-oftime sale of the Property to an unaffiliated bona fide purchaser, and the following conditions are met:
a) the transferee has a net worth of at least $38,000,000.00;
b) the transferee is an Institutional Investor or a developer or manager of first-pocket expensesclass commercial real estate comparable to the Property and having a reputation in the industry at least equivalent to that of Borrower as of the date of this Deed of Trust;
c) the transferee has expressly assumed the obligations of Borrower under the Property Documents and under the Loan Documents;
d) subsequent to the Transfer, including without limitation, reasonable attorney's fees, incurred the Property is managed by a property manager of first-class commercial real estate comparable to the Property for not less than 10 years and having a reputation in the industry at least equivalent to that of Borrower or the existing property manager as of the Closing and otherwise satisfactory to Lender;
e) Borrower delivers to Lender a substitute for the environmental indemnity delivered to Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long Loan and, if applicable, a substitute guaranty or surety instrument, satisfactory to Lender, executed by a substitute indemnitor, guarantor or surety, as the terms and conditions set forth in Sections 8.4(a)(i)case may be, (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that in its sole discretion; provided, with respect to the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth requirements of not less than Twenty-Five Million Dollars ($25,000,000the substitute indemnitor/guarantor for a substitute indemnitor/guarantor that meets the net worth requirements of 12.2(b)(i)(a), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all approval of the obligations net worth requirements for such substitute indemnitor/guarantor shall not be unreasonably withheld, but with respect to other factors, such approval shall be in ▇▇▇▇▇▇’s sole discretion; and
f) Upon satisfaction of Guarantor the requirements in 12.2(a) and 12.2(b)(i)(a)-(e), the then-existing guarantor under the Environmental Indemnity guaranty and indemnitor under the Guaranty pursuant to such documents environmental indemnity shall be released from any liability arising solely from post-transfer events and agreements as Lender shall reasonably require to evidence and effectuate such assumption andcircumstances.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions of this Section, Lender shall not unreasonably withhold consent to the simultaneous sale, conveyance or transfer of all of the Individual Properties (as defined in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and Except with respect to a Permitted Assignment, if Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least ten (10) business days, but not more than forty-five (45) days, before the date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such Saleinformation about the proposed assignee or sublessee, Lender shall not require a modification including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material economic terms hereof and conditions of the proposed assignment or sublease (including Tenant’s reasonable, good faith determination of the Personal Property Consideration (as hereinafter defined) thereunder), including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within fifteen (15) business days after receipt of the Assignment Notice: (i) grant such consent, (ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than a corresponding increase (together with all other then effective subleases) fifty percent (50%) of the Premises, (iii) refuse such consent, in Borrower's deposits into its reasonable discretion, if the Escrow Fund proposed subletting concerns (together with all other then effective subleases) fifty percent (50%) or less of the Premises (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), or (iv) terminate this Lease with respect to Taxes the space described in the event Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Sale results Assignment Notice by written notice to Landlord of such election within five (5) business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. It shall be reasonable for Landlord to withhold its consent to any assignment of this Lease or subletting of the Premises to an increase assignee or subtenant whose business or financial reputation is objectionable in Landlord’s reasonable judgment, or who is engaged in areas of scientific research or other business concerns that are controversial, in Landlord’s reasonable judgment, or who is at that time negotiating with Landlord or its affiliates for the lease of other space in the real property tax assessment by the applicable taxing authority), San Diego area. Landlord hereby covenants to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Sale not less than respond within thirty (30) days before to any Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the date on which such Sale is scheduled Assignment Notice, shall be deemed to close and, concurrently therewith, gives Lender all such information concerning be Landlord’s consent to the proposed transferee assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Property Premises to any entity which is controlling, controlled by or under common control with Tenant shall not be required, provided that Tenant shall notify Landlord of such assignment or subletting not less than five (hereinafter, "Buyer"5) as Lender would reasonably require in evaluating an initial extension of credit business days prior to a borrower such assignment or subletting and pays to Lender a non-refundable application fee in the amount of $2,500.00. Lender Landlord shall have the right to approve the form of any such sublease or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayedassignment. In determining whether addition, Tenant shall have the right to give assign this Lease, upon ten (10) business days prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a corporation or withhold its approval other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the proposed Buyerassets or the ownership interests of Tenant provided that (i) such merger or consolidation, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Propertyor such acquisition or assumption, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof is for a good business purpose and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide not principally for the matters described in subparagraph (vii) abovepurpose of transferring the Lease, (Bii) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lenderin accordance with generally accepted accounting principles (“GAAP”)) of the assignee is not less than Twenty-Five Million Dollars the net worth ($25,000,000as determined in accordance with GAAP) shall have assumed, from and after of Tenant as of the date of Tenant’s most current quarterly or annual financial statements as of the date of the applicable assignment, and (iii) such Sale, assignee shall agree in writing to assume all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms terms, covenants and conditions of this Section 8.4;
(b) Notwithstanding Lease arising after the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all effective date of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof assignment (or the date hereof if dated the first day of a calendar month“Permitted Assignment”), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable The provisions of Section 8.4 hereof have been satisfied. In connection 22(b) with any such transfer respect to an AffiliateAssignment Termination, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant provisions of Section 22(d) with respect to such documents and agreements as Lender sharing of Excess Rent, shall reasonably require not be applicable to evidence and effectuate such assumption andany Permitted Assignment.
Appears in 1 contract
Permitted Transfers. Except with respect to a Permitted Assignment, as defined below, if Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 10 business days, but not more than 45 days, before the date Tenant desires the assignment or sublease to be effective (athe “Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) Notwithstanding containing such information about the foregoing provisions proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored, handled, treated, generated in or released or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, Including a copy of any proposed assignment or sublease in its final form, and such other information as Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), (ii) refuse such consent in its reasonable discretion, or (iii) terminate this Lease with respect to the space described in the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in full force and effect, If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space described in such Assignment Notice. It shall be reasonable for Landlord to withhold its consent to any assignment of this SectionLease or subletting of the Premises to an assignee or subtenant whose business or financial reputation is objectionable in Landlord’s reasonable judgment, Lender or who is engaged in areas of scientific research or other business concerns that are controversial, in Landlord’s reasonable judgment, or who is at that time negotiating with Landlord for the lease of other space in the San Diego area. Landlord hereby acknowledges that (i) Tenant has advised Landlord that Tenant intends to sublease a portion of the Premises to ATS for a term which shall not unreasonably withhold expire on or before March 31, 2003, and (ii) Landlord has consented to the same. Landlord hereby covenants to respond in a timely manner to any Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the simultaneous saleproposed assignment, conveyance sublease or transfer of other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice. Notwithstanding the Individual Properties (as defined in the Note) in their entirety on foregoing, Landlord’s consent to an assignment of this Lease or a single occasion (a "Sale") after the first anniversary subletting of any portion of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect Premises to such Sale▇▇▇▇▇ & Nephew, Lender Inc. shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority)be required, to any person or entity provided that each of the following terms and conditions are satisfied:
(i) no default after the expiration of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documents;
(ii) Borrower gives Lender written notice of the terms Tenant shall notify Landlord of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $2,500.00assignment or subletting. Lender Landlord shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based 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 pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entitysublease or assignment to ▇▇▇▇▇ & Nephew, and (EInc. The provision of Section 22(b) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualificationan Assignment Termination, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sell, convey or transfer all of the Individual Properties pursuant to Section 8.4(a) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) without Lender's approval or consent and without payment of the one percent (1%) transfer fee (but with payment of all out-of-pocket expenses, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, deliver to Lender written notice of such transfer which notice shall (i) describe the proposed transfer in reasonable detail, (ii) include evidence reasonably satisfactory to Lender that the proposed transferee is an Affiliate of Borrower and that such Key Principal has a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection 22(d) with respect to sharing of Excess Rent, shall not be applicable to any such transfer sublease or assignment to an Affiliate▇▇▇▇▇ & Nephew, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption andInc.
Appears in 1 contract
Permitted Transfers. (a) Notwithstanding the foregoing provisions prohibitions regarding Transfers, provided that the Transfer would not result in the violation of the covenants contained in this SectionDeed of Trust regarding anti-terrorism or money laundering laws or ERISA, Lender shall not unreasonably withhold consent and so long as stock in Existing Limited Partner is publicly traded, and further provided that subsequent to the simultaneous saleTransfer, conveyance or transfer Existing General Partner remains as sole general partner of all Borrower and Existing General Partner remains a wholly owned subsidiary of the Individual Properties (as defined Existing Limited Partner and maintains not less than a 1% interest in the Note) in their entirety on a single occasion (a "Sale") after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month) and with respect to such SaleBorrower, Lender there shall not require a modification of the material economic terms hereof (other than a corresponding increase in Borrower's deposits into the Escrow Fund with respect to Taxes in the event such Sale results in an increase in the real property tax assessment by the applicable taxing authority), to any person or entity provided that each of the following terms and conditions are satisfiedbe no restriction on:
(i) no default after the expiration transfers of notice or grace periods is then continuing hereunder, under the Note, or any of the Other Security Documentsstock in Existing Limited Partner;
(ii) Borrower gives Lender written notice transfers of the terms of such prospective Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would reasonably require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee controlling limited partnership interests in the amount of $2,500.00. Lender shall have the right to approve or disapprove the proposed Buyer, such approval not to be unreasonably withheld or delayed. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer's experience and track record in owning and operating facilities similar to the Property, the Buyer's financial strength, the Buyer's general business standing and the Buyer's relationships and experience with contractors, vendors, tenants, lenders and other business entitiesBorrower by Existing Limited Partner; 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;or
(iii) Borrower pays Lender, concurrently with the closing transfers of such Sale, a non-refundable assumption fee controlling limited partnership interests in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred Borrower by Lender in connection with the Sale plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note. Borrower also pays, concurrently with the closing of such Sale, all costs and expenses of all third parties and Rating Agencies in connection with the Sale;
(iv) Buyer (a) assumes and agrees to pay all indebtedness secured hereby as and when due subject to the provisions of Article 11 of the Note, and (b) prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;
(v) Borrower and the Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance endorsements or certificates and limited partners 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 insuring that fee simple title to the Property is vested in the Buyer;
(vii) Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the qualification of the signers to execute the assumption of the indebtedness secured hereby, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners or members of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Lender shall require, shall be single purpose, "bankruptcy remote" entities which satisfy the requirements of Article IV hereof and the requirements of the Rating Agencies, and whose formation documents shall be approved by counsel to Lender. An individual recommended by the Buyer and approved by Lender shall serve as an independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate general partner or an independent member or, in Lender's discretion, manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer;
(viii) Buyer shall assume the obligations of Borrower under any management agreements pertaining to the Property or assign to Lender as additional security any new management agreement entered into in connection with such Sale;
(ix) Buyer shall furnish an opinion of counsel satisfactory to Lender and its counsel
(A) that the Buyer's formation documents provide for the matters described in subparagraph (vii) above, (B) that the assumption of the indebtedness evidenced hereby has been duly authorized, executed and delivered, and that the Note, this Security Instrument, the assumption agreement and the Other Security Documents are valid, binding and enforceable against the Buyer in accordance with their terms, (C) that the Buyer and any entity which is a controlling stockholder, member or general partner of Buyer, have been duly organized, and are in existence and good standing, (D) if required by Lender, that the assets of the Buyer will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Buyer, in the event of bankruptcy or insolvency of any such entity, and (E) with respect to such other matters as Lender may reasonably request;
(x) Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities or Participations (as defined in Section 18.1) to the effect that the Sale will not result in a qualification, downgrade or withdrawal of any rating initially assigned or then currently assigned or to be assigned to the Securities or Participations, as applicable;
(xi) An affiliate of Buyer with a net worth (as determined by Lender) of not less than Twenty-Five Million Dollars ($25,000,000) shall have assumed, from and after the date of such Sale, all of the obligations of Guarantor under the Environmental Indemnity and the Guaranty of Recourse Obligations of Borrower of even date herewith (the "Guaranty") pursuant to such documents and agreements as Lender shall reasonably require to evidence and effectuate such assumption and thereafter Guarantor shall be released from all liabilities and obligations under the Environmental Indemnity and the Guaranty arising from matters first occurring from and after the date of such Sale;
(xii) Borrower's obligations under the contract of sale pursuant to which the Sale is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 8.4;Existing Limited Partner.
(b) Notwithstanding the foregoing provision of this Section and provided Borrower has not exercised its right to sellprohibitions regarding Transfers, convey or transfer all of the Individual Properties pursuant to Section 8.4(aa Permitted Transfer (defined below) above, Borrower shall be permitted, after the first anniversary of the first day of the first calendar month after the date hereof (or the date hereof if dated the first day of a calendar month), to transfer or convey all of its interests in all of the Individual Properties to any Affiliate (hereinafter defined) whose key principal's (the "Key Principal") net worth as determined by Lender shall be not less than Twenty-Five Million Dollars ($25,000,000) may occur without Lender's approval prior consent provided that the following conditions are met:
(i) at least 30 days prior to the proposed Permitted Transfer, Borrower delivers to Lender a notice that is sufficiently detailed to enable Lender to determine that the proposed Permitted Transfer complies with the terms of this Section;
(ii) there is no default under the Loan Documents either when Lender receives the notice or consent and without payment when the proposed Permitted Transfer occurs;
(iii) the proposed Permitted Transfer will not result in a violation of any of the one percent (1%) transfer fee (but with payment of all out-of-pocket expensescovenants contained in the Section entitled, including without limitation, reasonable attorney's fees, incurred by Lender in connection with the transfer "ERISA Compliance" and all costs and expenses of all third parties and Rating Agencies in connection with the Sale) so long as the terms and conditions set forth in Sections 8.4(a)(i), (iv), (v), (vi), (vii), (viii), (ix) and (x) are satisfied. Borrower shall, not less than thirty (30) days before any such transfer, will deliver to Lender written such documentation of compliance as Lender requests in its sole discretion;
(iv) when Lender receives the notice of such transfer which notice shall (i) describe and when the proposed transfer in reasonable detailPermitted Transfer occurs, (ii) include evidence reasonably satisfactory the transferee has never been an adverse party to Lender that in any litigation to which Lender was a party; the proposed transferee is an Affiliate of Borrower and that such Key Principal has never defaulted on a net worth of not less than Twenty-Five Million Dollars ($25,000,000), and (c) include evidence reasonably satisfactory to loan from Lender that the applicable provisions of Section 8.4 hereof have been satisfied. In connection or on any contract or other agreement with any such transfer to an Affiliate, Key Principal shall assume, from and after the date of such transfer, all of the obligations of Guarantor under the Environmental Indemnity Lender; and the Guaranty pursuant to such documents transferee has never threatened litigation against Lender (for purposes of this subsection "transferee" includes the transferee's constituent entities at all levels and agreements as Lender shall reasonably require to evidence and effectuate such assumption and"Lender" includes Lender's subsidiaries);
Appears in 1 contract