Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent or notice to Lender (other 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 series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (excluding 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 natural person; (c) transfers of direct or indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such Persons; (d) transfers of Publicly Traded Shares in a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle; provided, that, with respect to clauses (a) through (d) 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) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (25%) of the economic and direct or indirect legal and beneficial interests in Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control Borrower and Guarantor, and (C) each Property shall continue to be managed by a Qualified Manager, (ii) no Sale or Pledge of any direct interest 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 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 direct or indirect interests in Borrower and/or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the direct 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 a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, if required by Lxxxxx, 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 provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, Lxxxxx’s receipt of a Rating 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, (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 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 (ix) Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Lxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or not such transfer is actually consummated; (e) A Public Sale; provided that (i) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower and/or any SPE Component Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest in Borrower and/or such SPE Component Entity, as applicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion 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 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 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 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 Borrower delivers to Lender (x) 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 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). 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 any Borrower or any SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any 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, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent or notice to Lender (other 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 series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (excluding the direct interests in Borrower 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 natural person;
(c) transfers of direct or indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such PersonsPersons (excluding the direct interests in Borrower, Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity);
(d) transfers of Publicly Traded Shares in a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle; provided, that, with respect to clauses (a) through (d) 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) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (25%) of the economic and direct or indirect legal and beneficial interests in Borrower and Mortgage Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control Borrower, Mortgage Borrower and Guarantor, and (C) each Property shall continue to be managed by a Qualified Manager,
(ii) no Sale or Pledge of any direct interest in Borrower, any Borrower Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity shall be permittedpermitted (other than pledges securing the Loan),
(iii) no Individual Borrower Borrower, Mortgage Borrower, SPE Component Entity or no 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 Sale or Pledge,
(iv) intentionally omittedafter giving effect to such transfers, Borrower shall continue to own 100% of the Collateral,
(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 direct or indirect interests in Borrower 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 Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as applicable, prior to such transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, if required by LxxxxxLender, 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 provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, Lxxxxx’s receipt of a Rating 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,
(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 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
(ix) Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Lxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or not such transfer is actually consummated;
(e) A Public Sale; provided that (i) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest in Borrower Borrower, Mortgage Borrower, any SPE Component Entity and/or such any Mortgage SPE Component Entity, as applicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion 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 Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage 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 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 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 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 Borrower delivers to Lender (x) 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 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). 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 Borrower or 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, but excluding Borrower, Mortgage Borrower, any Borrower or 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, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Agreement, including without limitation, 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 or notice to Lender consent: (other than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause i) a transfer (fbut not a pledge) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (excluding 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 natural person;
Restricted Party or any member, partner or shareholder of a Restricted Party (cbut not the direct interests in Borrower or any SPE Component Entity), (ii) transfers 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 (but not the direct interests in Borrower or any SPE Component Entity), (iii) (A) the sale, transfer or issuance of shares of stock in 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 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 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 interests in Borrower legal or beneficial owner of AFT or Guarantor for estate planning purposes to the transferor’s spouse, any lineal descendantchild, sibling parent, grandparent, grandchild, niece, nephew, aunt, uncle or parent other immediate family members of such transferor (including any of the foregoing by adoption)owner, or to a trust for the benefit of any one such spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or more other immediate family members and (v) a Permitted Pledge; and provided, further, that, the foregoing provisions of such Persons;
clauses (di), (ii), (iii), (iv) transfers of Publicly Traded Shares 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 a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehiclethe 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 (ai), (ii), (iii), (iv) through and (dv) 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, Borrower or Affiliated Manager; (C) (x) after giving effect to such Sale or Pledge transfers, Guarantor shall (and in the case of I) own at least a Sale or Pledge that is an upperfifty-tier pledge for security purposes, any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five one percent (2551%) of the economic and direct or indirect legal and beneficial interests equity ownership interest in Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control each of each Borrower and Guarantor, each SPE Component Entity and (CII) Control each Borrower and each SPE Component Entity 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 Qualified Manager,
New Manager approved in accordance with the applicable terms and conditions hereof; (iiE) no Sale or Pledge 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 interest 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 are owned 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 any Person and/or its Affiliates 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 owned less than the aggregate of forty-nine percent (49%) of the direct or indirect interests in Borrower and/or or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) as of the direct or indirect interests in Borrower and/or any SPE Component Entity, as applicable, prior to such transferClosing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” 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 Non-Consolidation Opinion reasonably acceptable date of such transfer (and, upon Lender’s request, Borrower shall deliver to Lender and, if required by Lxxxxx, an Officer’s Certificate containing such updated representations effective as of the Rating Agencies. In connection 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 consummated results in accordance the transferee (either itself or collectively with the terms of this Section 6.3its affiliates) owning a twenty percent (20%) (or, the organizational documents of with respect to any Person that owns a direct not domiciled in the United States, ten percent (10%)) or indirect greater equity interest (directly or indirectly) in Borrower may be amended to reflect such transfer so long as or in any such amendment does not violate the terms and provisions of Article 5 hereof. Notwithstanding anything SPE Component Entity (to the contrary contained hereinextent the transferee (collectively with its affiliates) did not previously own at least twenty percent (20%) (or, Lxxxxxwith 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 Rating Agency Confirmation condition precedent to such transfer, (I) such transfers shall not be required in connection with a Permitted Equity Transfer,
(vii) such transfer shall not trigger any right of first refusal, option prohibited pursuant to purchase or default under any 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) intentionally omitted, (L) other than a transfer pursuant to clause (i), subclause (iii)(A) or any Lease that (B) and/or clause (iv) above, no Event of Default 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 occurred and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor is continuing 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 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
(ixM) Borrower shall pay reimburse Lender within ten (10) Business Days after Lender’s written request for (I) all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Lxxxxx’s review of any transfer or proposed transferexpenses, including, without limitation, including reasonable attorneys’ fees (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 whether of the Rating Agencies incurred in connection therewith. For the avoidance of doubt, any listing and/or trading of the shares of stock in 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 such transfer is actually consummated;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.
(eb) A Public Sale; Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, the sale, transfer or issuance of direct or indirect interests in Guarantor shall be permitted without the consent of Lender provided that 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 $10,000.00, (ii) after giving effect to such sale, transfer or issuance, (I) to the extent that Guarantor shall not, after giving effect to such sale, transfer or issuance, (A) own at least a fifty-one percent (51%) direct or indirect interest in each Borrower and each SPE Component Entity and/or (B) Control 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 sale, transfer or issuance, (A) own at least a fifty-one percent (51%) direct or indirect interest in each Borrower and each SPE Component Entity and (B) Control 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 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 sale, 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 Public Salesale, transfer or issuance; (v) such sale, transfer or issuance is not prohibited under the terms of the Property Documents and the Ground Leases, (vi) after giving effect to such sale, transfer or issuance, Borrower shall remain in compliance with the relevant provisions of Article 5 hereof, (vii) after giving effect to such sale, 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 Borrower and each SPE Component Entity and (II) Control 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)(III) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each Borrower and each SPE Component Entity, (II) Control each of the Qualified Replacement Guarantor described in the immediately succeeding clause (B)(III) (unless such Qualified Replacement Guarantor is also such Qualified Equityholder), each 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 sale, transfer or issuance; (viii) to the extent that Guarantor shall not, after giving effect to such sale, transfer or issuance, (A) own at least a fifty-one percent (51%) direct or indirect interest in each Borrower and each SPE Component Entity and/or (B) Control each Borrower and each SPE Component Entity, Lender shall have received a Rating Agency Confirmation with respect to such sale, 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)(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)(A) if, after giving effect to such sale, transfer or issuance, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower and/or or any SPE Component Entity are owned by any Person and and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest interests in Borrower and/or such or any SPE Component Entity, Entity as applicable, prior to such Transferof the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such sale, transfer or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable issuance and (B) Borrower shall furnish to Lender andan 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 the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower and any SPE Component Entity shall will not fail to be maintain its status as a Special Purpose Entity pursuant to“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)(B)(3) above are valid, binding and enforceable against the Qualified Replacement Guarantor and Borrower, as applicable, in accordance with, Article 5 hereof by reason of such Public Salewith their terms, and (iiiII) with respect to that the Qualified Replacement Guarantor and any KYC Transferentity 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, (Axi) 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 (xii) Borrower shall deliver 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’ fees (of any outside counsel, if applicable), actually incurred by Lender (xor any Servicer on its behalf) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Personin connection therewith (II) all fees, costs and expenses of the Rating Agencies incurred in connection therewith, in each case effective as 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 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 organizational chart delivered to Lender and such KYC Transfer shall not be deemed permitted hereunder until in connection with the requirements of this clause (iii) are satisfied. Upon completion of Loan reflecting any such Public Sale subject to and equity transfer consummated 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 Borrower delivers to Lender (x) 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 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). 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 any Borrower or any SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any 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, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale6.3.
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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 or notice to Lender consent: (other than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause i) a transfer (fbut not a pledge) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (excluding 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 natural person;
Restricted Party or any member, partner or shareholder of a Restricted Party, (cii) transfers 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 interests in Borrower legal or beneficial owner of Guarantor for estate planning purposes to the transferor’s spouse, any lineal descendantchild, sibling parent, grandparent, grandchild, niece, nephew, aunt, uncle or parent other immediate family members of such transferor (including any of the foregoing by adoption)owner, or to a trust for the benefit of any one such spouse, child, parent, grandparent, grandchild, niece, nephew, aunt, uncle or more other immediate family members and (v) the pledge to a Qualified Lender of such Persons;
(d) transfers the right of Publicly Traded Shares in a Public Vehicle Guarantor or of any direct or indirect equity 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 Person whose only direct and/or indirect stock, partnership, membership and/or other equity interest interests in Borrower consists any Restricted Party; and provided, further, that, the foregoing provisions of Publicly Traded Shares 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 a Public Vehiclethe 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 (ai), (ii), (iii), (iv) through and/or (dv) 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 Sale or Pledge transfers, Guarantor shall (and in the case of I) own at least a Sale or Pledge that is an upper-tier pledge for security purposes, any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (25%) of the economic and 51% direct or indirect legal and beneficial interests equity ownership interest in Borrower on an unencumbered and look-through basis, (B) Sponsor or a Qualified Equityholder shall Control each of each Borrower and Guarantor, each SPE Component Entity and (CII) 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 Qualified Manager,
New Manager approved in accordance with the applicable terms and conditions hereof; (iiE) no Sale or Pledge 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 interest 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 are owned 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 any Person and/or its Affiliates 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 owned less than the aggregate of forty-nine percent (49%) of the direct or indirect interests in Borrower and/or or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) as of the direct or indirect interests in Borrower and/or any SPE Component Entity, as applicable, prior to such transferClosing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of 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, if required by Lxxxxxupon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the Rating Agencies. In connection 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 consummated results in accordance 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 this Section 6.3the Property Documents and the Ground Leases; (J) after giving effect to such transfers, the organizational documents Guarantor Control Condition shall continue to be satisfied, (K) with respect to a pledge to a Qualified Lender and any exercise of any Person that owns a direct or indirect interest in Borrower may be amended to reflect remedies by such transfer so long as any such amendment does not violate the terms and provisions of Article 5 hereof. Notwithstanding anything Qualified Lender with respect to the contrary contained hereintransfer set forth in clause (v) above, Lxxxxx’s receipt of in each instance, Lender shall have received a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(vii) respect to 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, (L) other than a transfer pursuant to clause (i) and/or subclause (iii)(A) or any default under the Property Management Agreement which (B) above, no Event of Default 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 occurred and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor is continuing 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 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
(ixM) Borrower shall pay have paid to Lender, concurrently with the closing of such transfer (I) all reasonable third-party out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (II) all fees, costs and expenses of Lender 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 Lxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or this Section 6.3(a) shall not such transfer is actually consummated;be a Prohibited Transfer.
(eb) A Public Sale; 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 that: (i) if 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 Public Saletransfer; (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 and/or or any SPE Component Entity are owned by any Person and and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest interests in Borrower and/or such or any SPE Component Entity, Entity as applicable, prior to such Transferof the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable addressing such transfer and (B) Borrower shall furnish to Lender andan 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 the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower and any SPE Component Entity shall will not fail to be maintain its status as a Special Purpose Entity pursuant to“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, Article 5 hereof by reason of such Public Salewith their terms, and (iiiII) with respect to that the Qualified Replacement Guarantor and any KYC Transferentity 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 (Axi) Borrower shall deliver 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 (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of connection with 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 (iii) are satisfied. Upon completion of Loan reflecting any such Public Sale subject to and equity transfer consummated 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 Borrower delivers to Lender (x) 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 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). 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 any Borrower or any SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any 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, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale6.3.
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