Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (i) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor or in any Restricted Party that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by Guarantor or any direct or indirect legal or beneficial owner of Guarantor for estate planning purposes to the transferor’s spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or other immediate family members of such owner, or to a trust for the benefit of such spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or other immediate family members and (v) the pledge to a Qualified Lender of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other equity interests in any Restricted Party; and provided, further, that, the foregoing provisions of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (i), (ii), (iii), (iv) and/or (v) above, (A) Lender shall receive not less than thirty (30) days prior written notice of (y) such transfers and (z) with respect to the pledge set forth in clause (v) above, the exercise of any rights or remedies by such Qualified Lender with respect to such pledge (provided, that, for purposes of clarification, with respect to the transfers contemplated in subsection (i) above, the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection (iii) above, no notice of such transfer is required); (B) no such transfers shall result in a change in Control of Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each Borrower and each SPE Component Entity and (II) Control each Borrower and each SPE Component Entity; (D) after giving effect to such transfers, each Individual Property which has a Manager as of the date of such transfer shall continue to be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and acceptable to the Rating Agencies addressing such transfer; (G) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall be permitted pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or (B) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing of the shares of stock in Guarantor on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) shall not be a Prohibited Transfer. (b) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, transfers of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) shall be permitted without the consent of Lender provided that: (i) Lender receives thirty (30) days prior written notice with respect to such transfer and in connection therewith, Borrower shall pay to Lender a non-refundable processing fee of $10,000, (ii) after giving effect to such transfers, (I) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and (II) to the extent that Guarantor shall, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property that has a Manager as of the date of such transfer shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (v) such transfer shall be permitted pursuant to the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfer, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such transfer, either (A) Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity or (B) a Qualified Equityholder shall (I) own at least a 51% direct or indirect equity ownership interest in each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfer; (viii) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IV) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (A) if, after giving effect to such transfer, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such transfer and (B) Borrower shall furnish to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect to the transfer and the transactions related thereto and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (I) that Qualified Replacement Guarantor’s good standing and due authorization to execute the documents required herein and that the documents referenced in (vii)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicable, in accordance with their terms, and (II) that the Qualified Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of the Qualified Replacement Guarantor have been duly organized, and are in existence and good standing, and (xi) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred by Borrower and Lender in connection therewith. (c) Upon request from Lender in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (iother than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower or any SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder natural person;
(c) transfers of a Restricted Party, (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor or in any Restricted Party that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by Guarantor or any direct or indirect legal or beneficial owner of Guarantor interests in Borrower for estate planning purposes to the transferor’s spouse, childany lineal descendant, parent, grandparent, grandchild, niece, nephew, aunt, uncle sibling or other immediate family members parent of such ownertransferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle Persons;
(d) transfers of Publicly Traded Shares in a Public Vehicle or other immediate family members and (v) the pledge to a Qualified Lender of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security equity interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other Person whose only equity interests interest in any Restricted Party; and provided, further, that, the foregoing provisions Borrower consists of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (i), a) through (ii), (iii), (iv) and/or (vd) above, (A) Lender shall receive not less than thirty (30) days prior written notice of (y) such transfers and (z) with respect to the pledge set forth in clause (v) above, the exercise of any rights or remedies by such Qualified Lender with respect to such pledge (provided, that, for purposes of clarification, with respect to the transfers contemplated in subsection ,
(i) above, the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection (iii) above, no notice of such transfer is required); (B) no such transfers shall result in a change in Control of Guarantor or Affiliated Manager; (C) after giving effect to such transfersSale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, Guarantor any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (I25%) own at least a 51% of the economic and direct or indirect equity ownership interest legal and beneficial interests in each of each Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control Borrower and each SPE Component Entity Guarantor, and (IIC) Control each Borrower and each SPE Component Entity; (D) after giving effect to such transfers, each Individual Property which has a Manager as of the date of such transfer shall continue to be managed by Manager a Qualified Manager,
(ii) no Sale or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management Pledge of any Individual Property to a new Affiliated Manager direct interest in accordance with the applicable terms and conditions hereof, or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in any Borrower or any SPE Component Entity shall be permitted,
(iii) no Individual Borrower or SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Sale or Pledge,
(iv) intentionally omitted,
(v) if such transfer is a KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (v) are owned by satisfied,
(vi) prior to any Person and/or its Affiliates that owned less transfer which, after giving effect to such transfer, results in more than the aggregate of forty-nine percent (49%) of the direct or indirect interests in Borrower or and/or any SPE Component Entity as being transferred to a Person not owning at least forty-nine (49%) of the Closing Datedirect or indirect interests in Borrower and/or any SPE Component Entity, as applicable, prior to such transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to a “bring-down” of the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and, if required by L▇▇▇▇▇, the Rating Agencies. In connection with any transfer consummated in accordance with the terms of this Section 6.3, the organizational documents of any Person that owns a direct or indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and acceptable provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, L▇▇▇▇▇’s receipt of a Rating Agencies addressing Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(vii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer; ,
(Gviii) after giving effect to the equity transfer extent Sponsor no longer Controls Borrower or owns a beneficial interest in question Borrower, Borrower delivers to Lender (Ix) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the representations contained herein relating organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to ERISA matters enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be true released from any further liability under the Guaranty and correct as if made as of Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such transfer Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (IIix) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall be permitted pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or (B) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) pay all reasonable third-party out-of-pocket costs and expensesexpenses of Lender incurred in connection with L▇▇▇▇▇’s review of any transfer or proposed transfer, including including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs fees and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing of the shares of stock in Guarantor on the New York Stock Exchange, NASDAQ Global Select Market whether or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) shall not be a Prohibited Transfer.such transfer is actually consummated;
(be) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, transfers of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) shall be permitted without the consent of Lender A Public Sale; provided that: that (i) Lender receives thirty (30) days prior written notice with respect to such transfer and in connection therewith, Borrower shall pay to Lender a non-refundable processing fee of $10,000, (ii) if after giving effect to any such transfers, (I) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and (II) to the extent that Guarantor shall, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property that has a Manager as of the date of such transfer shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (v) such transfer shall be permitted pursuant to the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfer, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such transfer, either (A) Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity or (B) a Qualified Equityholder shall (I) own at least a 51% direct or indirect equity ownership interest in each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfer; (viii) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IV) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (A) if, after giving effect to such transferPublic Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or and/or any SPE Component Entity are owned by any Person and/or and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests interest in Borrower or any and/or such SPE Component Entity Entity, as of the Closing Dateapplicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, to the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower and any SPE Component Entity shall not fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such transfer Public Sale, and (iii) with respect to any KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall furnish to Lender an opinion deliver prior written notice of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect to the transfer and the transactions related thereto and an additional opinion of counsel reasonably satisfactory such proposed KYC Transfer to Lender and its counsel such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Qualified Borrower delivers to Lender (x) a Replacement Guarantor’s good standing Guaranty for obligations and due authorization to execute liabilities under the documents required herein Guaranty and that the documents referenced in (vii)(3) above are valid, binding Environmental Indemnity occurring from and enforceable against the Qualified after such Public Sale from a Replacement Guarantor and Borrower(y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as applicablethe enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender). For purposes of clarity, in accordance with their terms, and (IIthe provisions of this Section 6.3(e) that shall not restrict the Qualified Replacement Guarantor and Public Company (or any entity which is a controlling stockholder, member direct or general partner indirect owner of the Qualified Replacement Guarantor have been duly organizedPublic Company, but excluding any Borrower or any SPE Component Entity) from effectuating a restructuring and are in existence and good standingsuch Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, and (xibut excluding any Borrower or any SPE Component Entity) Borrower shall have paid be permitted to Lender, concurrently with the closing of such transfer (I) all reasonable out-of-pocket costs and expenseseffectuate a restructuring, including reasonable attorneys’ feesamending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, incurred by Lender in connection therewith and (II) all feesquotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, costs and expenses L▇▇▇▇▇’s receipt of all third parties and the a Rating Agencies incurred by Borrower and Lender in connection therewith.
(c) Upon request from Lender Agency Confirmation shall not be required in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Public Sale.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (iother than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower, Mezzanine A Borrower, any SPE Component Entity or any Mezzanine A SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder natural person;
(c) transfers of a Restricted Party, (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor or in any Restricted Party that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by Guarantor or any direct or indirect legal or beneficial owner of Guarantor interests in Borrower for estate planning purposes to the transferor’s spouse, childany lineal descendant, parent, grandparent, grandchild, niece, nephew, aunt, uncle sibling or other immediate family members parent of such ownertransferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such spousePersons (excluding the direct interests in Borrower, childMezzanine A Borrower, parent, grandparent, grandchild, niece, nephew, aunt, uncle any SPE Component Entity or other immediate family members and any Mezzanine A SPE Component Entity);
(vd) the pledge to transfers of Publicly Traded Shares in a Qualified Lender Public Vehicle or of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security equity interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other Person whose only equity interests interest in any Restricted Party; and provided, further, that, the foregoing provisions Borrower consists of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (i), a) through (ii), (iii), (iv) and/or (vd) above, (A) Lender shall receive not less than thirty (30) days prior written notice of (y) such transfers and (z) with respect to the pledge set forth in clause (v) above, the exercise of any rights or remedies by such Qualified Lender with respect to such pledge (provided, that, for purposes of clarification, with respect to the transfers contemplated in subsection ,
(i) above, the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection (iii) above, no notice of such transfer is required); (B) no such transfers shall result in a change in Control of Guarantor or Affiliated Manager; (C) after giving effect to such transfersSale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, Guarantor any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (I25%) own at least a 51% of the economic and direct or indirect equity ownership interest legal and beneficial interests in each of each Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control Borrower and each SPE Component Entity Guarantor, and (IIC) Control each Borrower and each SPE Component Entity; (D) after giving effect to such transfers, each Individual Property which has a Manager as of the date of such transfer shall continue to be managed by Manager a Qualified Manager,
(ii) no Sale or Pledge of any direct interest in any Borrower, any Mezzanine Borrower, any SPE Component Entity or any Mezzanine SPE Component Entity shall be permitted (other than pledges securing any Mezzanine Loan),
(iii) no Individual Borrower or SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Sale or Pledge,
(iv) intentionally omitted,
(v) if such transfer is a KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (v) are satisfied,
(vi) prior to any transfer which, after giving effect to such transfer, results in more than the aggregate of forty-nine (49%) of the indirect interests in Borrower and/or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the indirect interests in Borrower and/or any SPE Component Entity, as applicable, prior to such transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a New Manager approved “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, if required by ▇▇▇▇▇▇, the Rating Agencies. In connection with any transfer consummated in accordance with the applicable terms of this Section 6.3, the organizational documents of any Person that owns an indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; . Notwithstanding anything to the contrary contained herein, ▇▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(Fvii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower or owns a beneficial interest in Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the case same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(1ix) the transfer Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of the management Lender incurred in connection with ▇▇▇▇▇▇’s review of any Individual Property to a new Affiliated Manager in accordance with the applicable terms transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and conditions hereof, expenses whether or not such transfer is actually consummated;
(2e) A Public Sale; provided that (i) if after giving effect to any such transfer Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or and/or any SPE Component Entity are owned by any Person and/or and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests interest in Borrower or any and/or such SPE Component Entity Entity, as of the Closing Dateapplicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to a “bring-down” of the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and acceptable and, to the extent a rated Securitization has occurred, the Rating Agencies addressing such transfer; Agencies, (Gii) after giving effect Borrower and any SPE Component Entity shall not fail to the equity transfer be a Special Purpose Entity pursuant to, and in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date accordance with, Article 5 hereof by reason of such transfer Public Sale, and (andiii) with respect to any KYC Transfer, upon Lender’s request, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall remain in compliance with the covenants contained herein relating deliver prior written notice of such proposed KYC Transfer to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall be permitted pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or (B) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing of the shares of stock in Guarantor on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) KYC Transfer shall not be a Prohibited Transfer.
deemed permitted hereunder until the requirements of this clause (biii) Notwithstanding the restrictions contained in this Article 6, so long as no Event are satisfied. Upon completion of Default has occurred any such Public Sale subject to and shall be continuing, transfers of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) shall be permitted without the consent of Lender provided that: (i) Lender receives thirty (30) days prior written notice with respect to such transfer and in connection therewith, Borrower shall pay to Lender a non-refundable processing fee of $10,000, (ii) after giving effect to such transfers, (I) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and (II) to the extent that provisions of this Section 6.3(e), Guarantor shall, after giving effect to such transfer, (A) own at least shall be released as a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property that has a Manager as of the date of such transfer shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity transfer in question guarantor under (I) the representations contained herein relating Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to ERISA matters shall be true Lender (x) a Replacement Guaranty for obligations and correct as if made as liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the date Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such transfer (and, upon Lender’s request, Borrower shall deliver assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender an Officer’s Certificate containing such updated representations effective as of on the date of the consummation of the applicable equity transfer) and Closing Date (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entitysuch other form as reasonably approved by Lender). For purposes of clarity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (v) such transfer shall be permitted pursuant to the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfer, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, this Section 6.3(e) shall not restrict the Qualified Public Company (vii) after giving effect to such transfer, either (A) Guarantor shall (I) own at least a 51% or any direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity or (B) a Qualified Equityholder shall (I) own at least a 51% direct or indirect equity ownership interest in each owner of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder)Public Company, each Borrower, AFOP and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfer; (viii) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IV) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (A) if, after giving effect to such transfer, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in but excluding any Borrower or any SPE Component Entity are owned by Entity) from effectuating a restructuring and such Qualified Public Company (or any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in owner of the Qualified Public Company, but excluding any Borrower or any SPE Component Entity as of the Closing DateEntity) shall be permitted to effectuate a restructuring, Borrower shall deliver including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to Lender a New Non-Consolidation Opinion addressing such transfer and (B) Borrower shall furnish be required to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualificationssatisfy stock exchange, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect quotation system listing or trading requirements. Notwithstanding anything to the transfer contrary contained herein, ▇▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale.
(f) The pledge of any interest in Borrower in connection with the Mezzanine A Loan and the transactions related thereto exercise of any rights or remedies Mezzanine A Lender may have under the Mezzanine A Loan Documents and an additional opinion the pledge of counsel reasonably satisfactory to any interest in Mezzanine A Borrower in connection with the Mezzanine B Loan and the exercise of any rights or remedies Mezzanine B Lender and its counsel (I) that Qualified Replacement Guarantor’s good standing and due authorization to execute may have under the documents required herein and that the documents referenced Mezzanine B Loan Documents, in (vii)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicableeach case, in accordance with their terms, and (II) that the Qualified Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of the Qualified Replacement Guarantor have been duly organized, and are in existence and good standing, and (xi) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred by Borrower and Lender in connection therewithIntercreditor Agreement.
(c) Upon request from Lender in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Agreement, including without limitation, this Article 6, the following equity transfers shall be permitted without Lender’s consent: (i) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyParty (but not the direct interests in Borrower or any SPE Component Entity), (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted PartyParty (but not the direct interests in Borrower or any SPE Component Entity), (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor AFT or in any Restricted Party (but not the direct interests in Borrower or any SPE Component Entity) that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation AFT provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation AFT or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by AFT or Guarantor or any direct or indirect legal or beneficial owner of AFT or Guarantor for estate planning purposes to the transferor’s spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or other immediate family members of such owner, or to a trust for the benefit of such spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or other immediate family members and (v) the pledge to a Qualified Lender of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other equity interests in any Restricted PartyPermitted Pledge; and provided, further, that, the foregoing provisions of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (i), (ii), (iii), (iv) and/or and (v) above, (A) if such transfer results in the transfer of ten percent (10%) or more of the direct or indirect interest in Borrower to a Person which, prior to such transfer, did not own ten percent (10%) or more of a direct or indirect interest in Borrower, Lender shall receive not less than thirty (30) days prior written notice of (y) such transfers and (z) with respect to the pledge set forth in clause (v) above, the exercise of any rights or remedies by such Qualified Lender with respect to such pledge (provided, that, for purposes of clarification, with respect to the transfers contemplated in subsection (i) above, the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection (iii) above, no notice of such transfer is required); (B) no such transfers shall result in a change in Control of Guarantor Guarantor, Borrower or Affiliated Manager; (C) (x) after giving effect to such transfers, Guarantor shall (I) own at least a fifty-one percent (51% %) direct or indirect equity ownership interest in each of each Borrower and each SPE Component Entity and (II) Control each Borrower and each SPE Component EntityEntity and (y) after giving effect to such transfers, AFT shall (I) own at least a fifty-one percent (51%) direct or indirect equity ownership interest in Guarantor and (II) Control Guarantor; (D) after giving effect to such transfers, each Individual Property which has a Manager as of the date of such transfer shall continue to be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and acceptable to the Rating Agencies addressing such transfer; (G) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a twenty percent (20% %) (or, with respect to any Person not domiciled in the United States, ten percent (10%)) or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity (to the extent the transferee (collectively with its affiliates) did not previously own at least twenty percent (20%) (or, with respect to any Person not domiciled in the United States, ten percent (10%)) of the equity interest (directly or indirectly) in Borrower or in any SPE Component Entity), Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall not be permitted prohibited pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transferintentionally omitted, (L) other than a transfer pursuant to clause (i) and/or ), subclause (iii)(A) or (B) and/or clause (iv) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to reimburse Lender within ten (10) Business Days after Lender, concurrently with the closing of such transfer ’s written request for (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ feesfees (of any outside counsel, if applicable), actually incurred by Lender (or any Servicer on its behalf) in connection therewith therewith, and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing and/or trading of the shares of stock in Guarantor AFT on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) shall not be a Prohibited Transfer. For purposes of this Section 6.3(a) and for purposes of Section 6.3(b) below, the issuance of stock, partnership interests or other equity interests shall include the issuance of existing classes of stock, partnership interests and/or other equity interests as well as the creation and/or issuance of one or more new classes of stock, partnership interests or other equity interests.
(b) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, transfers the sale, transfer or issuance of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) Guarantor shall be permitted without the consent of Lender provided that: (i) if such sale, transfer or issuance results in the transfer of ten percent (10%) or more of the direct or indirect interest in Borrower to a Person which, prior to such sale, transfer or issuance, did not own ten percent (10%) or more of a direct or indirect interest in Borrower, Lender receives thirty (30) days prior written notice with respect to such sale, transfer or issuance and in connection therewith, Borrower shall pay to Lender a non-refundable processing fee of $10,00010,000.00, (ii) after giving effect to such transferssale, transfer or issuance, (I) to the extent that Guarantor shall not, after giving effect to such transfersale, transfer or issuance, (A) own at least a fifty-one percent (51% %) direct or indirect interest in each Borrower, AFOP Borrower and each SPE Component Entity and/or (B) Control Borrower, AFOP Borrower and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and (II) to the extent that Guarantor shall, after giving effect to such transfersale, transfer or issuance, (A) own at least a fifty-one percent (51% %) direct or indirect interest in each Borrower, AFOP Borrower and each SPE Component Entity and (B) Control Borrower, AFOP Borrower and each SPE Component Entity, each Individual Property that has a Manager as of the date of such sale, transfer or issuance shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity sale, transfer or issuance in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such sale, transfer or issuance (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfersale, transfer or issuance) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such sale, transfer or issuance results in the transferee (either itself or collectively with its affiliates) owning a twenty percent (20% %) (or, with respect to any Person not domiciled in the United States, ten percent (10%)) or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity (to the extent the transferee (collectively with its affiliates) did not previously own at least twenty percent (20%) (or, with respect to any Person not domiciled in the United States, ten percent (10%)) of the equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfersale, transfer or issuance; (v) such sale, transfer shall be permitted pursuant to or issuance is not prohibited under the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfersale, transfer or issuance, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such transfersale, transfer or issuance, either (A) (x) Guarantor shall (I) own at least a fifty-one percent (51% %) direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity and (y) AFT shall (I) own at least a fifty-one percent (51%) direct or indirect equity ownership interest in Guarantor and (II) Control Guarantor, or (B) a Qualified Equityholder shall (I) own at least a fifty-one percent (51% %) direct or indirect equity ownership interest in each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IVB)(III) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP Borrower and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IVB)(III) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP Borrower and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfersale, transfer or issuance; (viii) to the extent that Guarantor shall not, after giving effect to such transfersale, transfer or issuance, (A) own at least a fifty-one percent (51% %) direct or indirect interest in each Borrower, AFOP Borrower and each SPE Component Entity and/or (B) Control Borrower, AFOP each Borrower and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfersale, transfer or issuance, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IVvii)(B)(III) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (Ax)(A) if, after giving effect to such transfersale, transfer or issuance, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such sale, transfer or issuance and (B) Borrower shall furnish to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect to the sale, transfer or issuance and the transactions related thereto and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (I) that Qualified Replacement Guarantor’s good standing and due authorization to execute the documents required herein and that the documents referenced in clause (vii)(3vii)(B)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicable, in accordance with their terms, and (II) that the Qualified Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of the Qualified Replacement Guarantor have been duly organized, and are in existence and good standing, (xi) unless Guarantor is replaced with a Qualified Replacement Guarantor as set forth herein, such sale, transfer or issuance shall not result in Guarantor’s non-compliance with the net worth and liquidity requirements provided in the Guaranty, and (xixii) Borrower shall have paid to Lender, concurrently with the closing of such sale, transfer or issuance (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ feesfees (of any outside counsel, if applicable), actually incurred by Lender (or any Servicer on its behalf) in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred by Borrower and Lender in connection therewith, in each case, if any.
(c) Upon request from Lender in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (iother than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower, Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder natural person;
(c) transfers of a Restricted Party, (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor or in any Restricted Party that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by Guarantor or any direct or indirect legal or beneficial owner of Guarantor interests in Borrower for estate planning purposes to the transferor’s spouse, childany lineal descendant, parent, grandparent, grandchild, niece, nephew, aunt, uncle sibling or other immediate family members parent of such ownertransferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such spousePersons (excluding the direct interests in Borrower, childMortgage Borrower, parent, grandparent, grandchild, niece, nephew, aunt, uncle any SPE Component Entity or other immediate family members and any Mortgage SPE Component Entity);
(vd) the pledge to transfers of Publicly Traded Shares in a Qualified Lender Public Vehicle or of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security equity interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other Person whose only equity interests interest in any Restricted Party; and provided, further, that, the foregoing provisions Borrower consists of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (i), a) through (ii), (iii), (iv) and/or (vd) above,
(i) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, any subsequent foreclosure thereon), (A) Lender Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall receive collectively own not less than thirty twenty-five percent (3025%) days prior written notice of the economic and direct or indirect legal and beneficial interests in Borrower and Mortgage Borrower on an unencumbered and look-through basis, (yB) such transfers Sponsor or a Qualified Equityholder shall Control Borrower, Mortgage Borrower and Guarantor, and (zC) with respect each Property shall continue to the pledge set forth in clause be managed by a Qualified Manager,
(vii) above, the exercise no Sale or Pledge of any rights direct interest in Borrower, any Mortgage Borrower, Mezzanine B Borrower, any SPE Component Entity, any Mortgage SPE Component Entity or remedies by such Qualified Lender with respect to such pledge any Mezzanine B SPE Component Entity shall be permitted (provided, that, for purposes of clarification, with respect to other than pledges securing the transfers contemplated in subsection (i) above, Loan and the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection Mezzanine B Loan),
(iii) aboveno Borrower, Mortgage Borrower, SPE Component Entity or no notice Mortgage SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such transfer is required); Sale or Pledge,
(B) no such transfers shall result in a change in Control of Guarantor or Affiliated Manager; (Civ) after giving effect to such transfers, Guarantor Borrower shall continue to own 100% of the Collateral,
(Iv) own at least if such transfer is a 51% direct or indirect equity ownership interest KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of each Borrower and each SPE Component Entity the date of the consummation of the applicable KYC Transfer, and (IIy) Control each Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and each SPE Component Entity; such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (Dv) are satisfied,
(vi) prior to any transfer which, after giving effect to such transferstransfer, each Individual Property which has a Manager as results in more than the aggregate of forty-nine (49%) of the date indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as applicable, prior to such transfer transfer, Borrower shall continue deliver to be managed by Manager Lender a New Non-Consolidation Opinion or a New Manager approved “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, if required by ▇▇▇▇▇▇, the Rating Agencies. In connection with any transfer consummated in accordance with the applicable terms of this Section 6.3, the organizational documents of any Person that owns an indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; . Notwithstanding anything to the contrary contained herein, ▇▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(Fvii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower and Mortgage Borrower or owns a beneficial interest in Borrower or Mortgage Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the case same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(1ix) the transfer Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of the management Lender incurred in connection with ▇▇▇▇▇▇’s review of any Individual Property to a new Affiliated Manager in accordance with the applicable terms transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and conditions hereof, expenses whether or not such transfer is actually consummated;
(2e) A Public Sale; provided that (i) if after giving effect to any such transfer Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity are owned by any Person and/or and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests interest in Borrower or Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as of the Closing Dateapplicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to a “bring-down” of the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and acceptable and, to the extent a rated Securitization has occurred, the Rating Agencies addressing such transfer; Agencies, (Gii) after giving effect Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity shall not fail to the equity transfer be a Special Purpose Entity pursuant to, and in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date accordance with, Article 5 hereof by reason of such transfer Public Sale, and (andiii) with respect to any KYC Transfer, upon Lender’s request, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall remain deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in compliance accordance with the covenants contained herein relating provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to ERISA matters; Lender (Hx) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the extent that any transfer results assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the transferee same form and substance as the enforceability opinion delivered to Lender on the Closing Date (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in such other form as reasonably approved by Lender). For purposes of clarity, the provisions of this Section 6.3(e) shall not restrict the Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, Lenderbut excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, quotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, ▇▇▇▇▇▇’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall be permitted pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or (B) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing of the shares of stock in Guarantor on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) shall not be required in connection with a Prohibited TransferPublic Sale.
(bf) Notwithstanding the restrictions contained The pledge of any interest in this Article 6, so long as no Event of Default has occurred and shall be continuing, transfers of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) shall be permitted without the consent of Lender provided that: (i) Lender receives thirty (30) days prior written notice with respect to such transfer and Borrower in connection therewith, Borrower shall pay to with the Mezzanine B Loan and the exercise of any rights or remedies Mezzanine B Lender a non-refundable processing fee of $10,000, (ii) after giving effect to such transfers, (I) to may have under the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved Mezzanine B Loan Documents in accordance with the applicable terms and conditions hereof and (II) to the extent that Guarantor shall, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property that has a Manager as of the date of such transfer shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (v) such transfer shall be permitted pursuant to the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfer, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such transfer, either (A) Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity or (B) a Qualified Equityholder shall (I) own at least a 51% direct or indirect equity ownership interest in each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfer; (viii) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IV) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (A) if, after giving effect to such transfer, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such transfer and (B) Borrower shall furnish to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect to the transfer and the transactions related thereto and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (I) that Qualified Replacement Guarantor’s good standing and due authorization to execute the documents required herein and that the documents referenced in (vii)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicable, in accordance with their terms, and (II) that the Qualified Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of the Qualified Replacement Guarantor have been duly organized, and are in existence and good standing, and (xi) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred by Borrower and Lender in connection therewithIntercreditor Agreement.
(c) Upon request from Lender in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (iother than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower, Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder natural person;
(c) transfers of a Restricted Party, (ii) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (iii) (A) the sale, transfer or issuance of shares of stock in Guarantor or in any Restricted Party that, in each instance, is a publicly traded entity, provided such shares of stock are listed on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or (B) the sale, transfer or issuance of shares of stock in American Finance Trust, Inc., a Maryland corporation provided that such shares of stock are sold, transferred or issued in the ordinary course of business through licensed broker dealers in accordance with all applicable Legal Requirements to third party investors in a manner consistent with previous offerings conducted by American Finance Trust, Inc., a Maryland corporation or its Affiliates as of the Closing Date, (iv) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) by Guarantor or any direct or indirect legal or beneficial owner of Guarantor interests in Borrower for estate planning purposes to the transferor’s spouse, childany lineal descendant, parent, grandparent, grandchild, niece, nephew, aunt, uncle sibling or other immediate family members parent of such ownertransferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such spousePersons (excluding the direct interests in Borrower, childMortgage Borrower, parent, grandparent, grandchild, niece, nephew, aunt, uncle any SPE Component Entity or other immediate family members and any Mortgage SPE Component Entity);
(vd) the pledge to transfers of Publicly Traded Shares in a Qualified Lender Public Vehicle or of the right of Guarantor or any direct or indirect legal or beneficial owner of Guarantor to receive distributions, and the granting of a security equity interest to such Qualified Lender in such distributions, in an amount such that Guarantor shall continue to comply with the net worth and liquidity requirements provided in the Guaranty (provided, that, such pledge to a Qualified Lender shall not include the transfer or pledge of any direct and/or indirect stock, partnership, membership and/or other Person whose only equity interests interest in any Restricted Party; and provided, further, that, the foregoing provisions Borrower consists of clauses (i), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (i), a) through (ii), (iii), (iv) and/or (vd) above,
(i) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, any subsequent foreclosure thereon), (A) Lender Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall receive collectively own not less than thirty twenty-five percent (3025%) days prior written notice of the economic and direct or indirect legal and beneficial interests in Borrower and Mortgage Borrower on an unencumbered and look-through basis, (yB) such transfers Sponsor or a Qualified Equityholder shall Control Borrower, Mortgage Borrower and Guarantor, and (zC) with respect each Property shall continue to the pledge set forth in clause be managed by a Qualified Manager,
(vii) above, the exercise no Sale or Pledge of any rights direct interest in Borrower, any Mortgage Borrower, any SPE Component Entity or remedies by such Qualified Lender with respect to such pledge any Mortgage SPE Component Entity shall be permitted (provided, that, for purposes of clarification, with respect to other than pledges securing the transfers contemplated in subsection (i) above, the aforesaid notice shall only be deemed to be required thirty (30) days following Borrower’s knowledge thereof and with respect to the transfers contemplated in subsection Loan),
(iii) aboveno Borrower, Mortgage Borrower, SPE Component Entity or no notice Mortgage SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such transfer is required); Sale or Pledge,
(B) no such transfers shall result in a change in Control of Guarantor or Affiliated Manager; (Civ) after giving effect to such transfers, Guarantor Borrower shall continue to own 100% of the Collateral,
(Iv) own at least if such transfer is a 51% direct or indirect equity ownership interest KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of each Borrower and each SPE Component Entity the date of the consummation of the applicable KYC Transfer, and (IIy) Control each Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and each SPE Component Entity; such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (Dv) are satisfied,
(vi) prior to any transfer which, after giving effect to such transferstransfer, each Individual Property which has a Manager as results in more than the aggregate of forty-nine (49%) of the date direct or indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the direct or indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as applicable, prior to such transfer transfer, Borrower shall continue deliver to be managed by Manager Lender a New Non-Consolidation Opinion or a New Manager approved “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, if required by Lender, the Rating Agencies. In connection with any transfer consummated in accordance with the applicable terms of this Section 6.3, the organizational documents of any Person that owns a direct or indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and conditions hereof; (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; . Notwithstanding anything to the contrary contained herein, L▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(Fvii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower and Mortgage Borrower or owns a beneficial interest in Borrower or Mortgage Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the case same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(1ix) the transfer Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of the management Lender incurred in connection with L▇▇▇▇▇’s review of any Individual Property to a new Affiliated Manager in accordance with the applicable terms transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and conditions hereof, expenses whether or not such transfer is actually consummated;
(2e) A Public Sale; provided that (i) if after giving effect to any such transfer Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity are owned by any Person and/or and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests interest in Borrower or Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as of the Closing Dateapplicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or an update to a “bring-down” of the original Non-Consolidation Opinion delivered in connection with the closing of the Loan reasonably acceptable to Lender and acceptable and, to the extent a rated Securitization has occurred, the Rating Agencies addressing such transfer; Agencies, (Gii) after giving effect Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity shall not fail to the equity transfer be a Special Purpose Entity pursuant to, and in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date accordance with, Article 5 hereof by reason of such transfer Public Sale, and (andiii) with respect to any KYC Transfer, upon Lender’s request, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall remain deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in compliance accordance with the covenants contained herein relating provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to ERISA matters; Lender (Hx) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the extent that any transfer results assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the transferee same form and substance as the enforceability opinion delivered to Lender on the Closing Date (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in such other form as reasonably approved by Lender). For purposes of clarity, the provisions of this Section 6.3(e) shall not restrict the Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, Lenderbut excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, quotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, L▇▇▇▇▇’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, (I) such transfers shall be permitted pursuant to the terms of the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of remedies by such Qualified Lender with respect to the transfer set forth in clause (v) above, in each instance, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or (B) above, no Event of Default has occurred and is continuing and (M) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing of the shares of stock in Guarantor on the New York Stock Exchange, NASDAQ Global Select Market or another nationally recognized stock exchange or market in accordance with this Section 6.3(a) shall not be a Prohibited Transfer.
(b) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, transfers of direct or indirect interests in American Finance Operating Partnership, L.P. (“AFOP”) shall be permitted without the consent of Lender provided that: (i) Lender receives thirty (30) days prior written notice with respect to such transfer and in connection therewith, Borrower shall pay to Lender a non-refundable processing fee of $10,000, (ii) after giving effect to such transfers, (I) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property shall be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and (II) to the extent that Guarantor shall, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and (B) Control Borrower, AFOP and each SPE Component Entity, each Individual Property that has a Manager as of the date of such transfer shall continue to be managed by a Manager or a New Manager approved in accordance with the applicable terms and conditions hereof, (iii) after giving effect to the equity transfer in question (I) the representations contained herein relating to ERISA matters shall be true and correct as if made as of the date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) Borrower shall remain in compliance with the covenants contained herein relating to ERISA matters, (iv) to the extent that such transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (v) such transfer shall be permitted pursuant to the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such transfer, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such transfer, either (A) Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each of AFOP, each Borrower and each SPE Component Entity and (II) Control each of AFOP, each Borrower and each SPE Component Entity or (B) a Qualified Equityholder shall (I) own at least a 51% direct or indirect equity ownership interest in each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(IV) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower, AFOP and each SPE Component Entity; and (III) shall deliver to Lender a replacement limited recourse guaranty in form and substance substantially identical to the Guaranty and a replacement environmental indemnity agreement in form and substance substantially identical to the Environmental Indemnity, each executed by a Qualified Replacement Guarantor with respect to actions or omissions first occurring on or after the date of such transfer; (viii) to the extent that Guarantor shall not, after giving effect to such transfer, (A) own at least a 51% direct or indirect interest in each Borrower, AFOP and each SPE Component Entity and/or (B) Control Borrower, AFOP and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such transfer, (ix) such Qualified Replacement Guarantor shall have furnished to Lender all appropriate papers evidencing such Person’s organization and good standing, and the qualification of the signers to execute the documents referenced in clause (vii)(B)(IV) above, which papers shall include certified copies of all relevant documents relating to the organization and formation of such Qualified Replacement Guarantor and of the entities, if any, which are partners or members of the Qualified Replacement Guarantor, (x) (A) if, after giving effect to such transfer, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such transfer and (B) Borrower shall furnish to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code with respect to the transfer and the transactions related thereto and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (I) that Qualified Replacement Guarantor’s good standing and due authorization to execute the documents required herein and that the documents referenced in (vii)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicable, in accordance with their terms, and (II) that the Qualified Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of the Qualified Replacement Guarantor have been duly organized, and are in existence and good standing, and (xi) Borrower shall have paid to Lender, concurrently with the closing of such transfer (I) all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of all third parties and the Rating Agencies incurred by Borrower and Lender in connection therewith.
(c) Upon request from Lender in connection with any transfer set forth above and otherwise no more than once each calendar quarter, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Public Sale.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)