Permitted Property Transfer (Assumption). Notwithstanding the foregoing provisions of this Article 6, no transfer of all of the Properties, the Mezzanine A Collateral and the Collateral and assumption of the Loan and the Security Instrument shall occur until the earlier of (I) sixty (60) days after a Securitization of the Loan, Securitization (as defined in the Mezzanine A Loan Agreement) of the Mezzanine A Loan or Securitization (as defined in the Mortgage Loan Agreement) of the Mortgage Loan and (II) one hundred twenty (120) days after the Closing Date. Otherwise, in addition to Borrower’s other rights expressly permitted under this Article 6, (X) a transfer of all of the Properties, all of the Mezzanine A Collateral and the Collateral or (Y) a transfer of more than forty-nine percent (49%) of the direct or indirect legal or beneficial interests in Borrower, Mezzanine A Borrower and Mortgage Borrower, and in each instance provided that the same do not otherwise constitute a Permitted Transfer or are otherwise permitted by Section 6.3 (a “Majority Equity Transfer”) and, in each case, to the extent the Mortgage Loan is simultaneously being assumed by a Successor Property Owner, the related and concurrent assumption of the Mortgage Loan by a Successor Property Owner pursuant to Section 6.4 of the Mortgage Loan Agreement, the Mezzanine A Loan by a Transferee (as defined in the Mezzanine A Loan Agreement) (hereafter, “Mezzanine A Transferee”) pursuant to Section 6.4 of the Mezzanine A Loan Agreement, and the Loan by a Person (a “Transferee”) shall be permitted without Lender’s consent (each, a “Permitted Assumption”) provided that ▇▇▇▇▇▇ receives thirty (30) days’ prior written notice of such Permitted Assumption and no Event of Default has occurred and is continuing at the time the Permitted Assumption is consummated. In connection with any Permitted Assumption pursuant to this Section 6.4, Borrower shall be required to satisfy the following: (a) Borrower shall pay Lender, Mortgage Lender and Mezzanine A Lender (without duplicating any payment made under the Mortgage Loan Agreement) a fee equal to $250,000.00 at the time such Permitted Assumption is consummated, which amount shall be split pro rata among the Loan, Mortgage Loan and Mezzanine A Loan; (b) Borrower shall pay any and all reasonable out of pocket costs incurred in connection with such Permitted Assumption (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes); (i) Transferee or, in the case of a Majority Equity Transfer, Borrower, (ii) Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and (iii) Successor Property Owner or Mortgage Borrower, as applicable, must be directly or indirectly twenty-five percent (25%) or more collectively owned, and Controlled by, one or more Qualified Equityholders; (d) With respect to a transfer of the Properties, if applicable, Successor Property Owner shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents, with respect to a transfer of the Mezzanine A Collateral, if applicable, Mezzanine A Transferee shall assume all of the obligations of Mezzanine A Borrower under the Mezzanine A Loan Documents and with respect to a transfer of the Collateral, if applicable, Transferee shall assume all of the obligations of Borrower under the Loan Documents, in a manner reasonably satisfactory to Lender, Mezzanine A Lender or Mortgage Lender, as applicable, in all material respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender, Mezzanine A Lender or Mortgage Lender, as applicable; (e) After giving effect to the Permitted Assumption, (i) Transferee and any SPE Component Entity or, in the case of a Majority Equity Transfer, Borrower and each SPE Component Entity and (ii) Successor Property Owner or Mortgage Borrower, as applicable, and each Mortgage SPE Component Entity and Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and any Mezzanine A SPE Component Entity must satisfy the applicable requirements of Article 5 hereof, Article 5 of the Mortgage Loan Agreement and Article 5 of the Mezzanine A Loan Agreement, respectively, and must be able to make all of the applicable representations set forth in Section 3.30 hereof, Section 3.30 of the Mortgage Loan Agreement and Section 3.30 of the Mezzanine A Loan Agreement, respectively, no Event of Default, Mortgage Loan Event of Default or Mezzanine A Loan Event of Default shall otherwise occur as a result of such transfer, and Transferee, any SPE Component Entity, Mezzanine A Transferee, any Mezzanine A SPE Component Entity, Successor Property Owner and any Mortgage SPE Component Entity shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender, and (B) all certificates and agreements necessary to evidence the Permitted Assumption and any due formation, execution enforceability legal opinions reasonably required by ▇▇▇▇▇▇; (f) Lender shall have reasonably approved the Successor Property Owner’s or Mortgage Borrower’s, as applicable, owner’s title insurance policy with respect to the Property, subject only to the Permitted Encumbrances; provided, that any owner’s title insurance policy with respect to all of the Properties in substantially the same form delivered to Lender in connection with the closing of the Loan (subject only to Permitted Encumbrances) shall be deemed reasonably acceptable to Lender; (g) Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement); (h) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender a New Non-Consolidation Opinion in respect of such transfer in form and substance reasonably satisfactory to Lender which opinion may be relied upon by ▇▇▇▇▇▇ and the Rating Agencies with respect to the proposed transfer; (i) With respect to any KYC Transfer, (A) Lender shall receive (x) an Officer’s Certificate from Borrower certifying that each KYC Transferee is not a Prohibited Person, in each case, effective as of the date of the consummation of the Permitted Assumption, and (y) Satisfactory Search Results for each KYC Transferee and (B) each KYC Transferee has satisfied Lender’s “know your customer” requirements; (j) Immediately upon the consummation of a Permitted Assumption pursuant to this Section 6.4, any of (1) a Qualified Equityholder which has a Net Worth as of the date of such Permitted Assumption equal to, or in excess of, $750,000,000, (2) a Person which has a Net Worth as of the date of such Permitted Assumption equal to, or in excess of, $750,000,000 and which otherwise satisfies the requirement of a Qualified Equityholder or (3) one or more substitute guarantors reasonably acceptable to Lender as of the date of such the Public Sale or such Permitted Assumption, as applicable, and in all cases subject to Lender’s receipt of (x) an Officer’s Certificate certifying that such Person is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable transfer, and (y) Satisfactory Search Results for such Person and (B) such Person has satisfied Lender’s “know your customer” requirements (any such person that qualified with the requirements of subclauses (1), (2) or (3), each a “Replacement Guarantor”) shall have executed and delivered a replacement guaranty substantially in the form of the Guaranty (or otherwise in a form reasonably satisfactory to Lender) and, together with Borrower or Transferee, a replacement environmental indemnity agreement in the form of the Environmental Indemnity or otherwise in a form reasonably satisfactory to Lender (collectively, a “Replacement Guaranty”) or shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity arising from and after the date of the Public Sale or Permitted Assumption, as applicable. Guarantor shall be released from all liability under this Agreement, the Note, the Security Instruments, the Guaranty, the Environmental Indemnity and the other Loan Documents accruing from and after the date of such Replacement Guaranty (other than liabilities caused by Guarantor and/or its Affiliates) or such assumption by Replacement Guarantor. The foregoing release shall be effective automatically upon the date of such Replacement Guaranty or such assumption by Replacement Guarantor, but ▇▇▇▇▇▇ agrees to provide written evidence thereof if the same is reasonably requested by ▇▇▇▇▇▇▇▇. Notwithstanding anything to the contrary contained herein, ▇▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Assumption; (k) Transferee shall (i) own, directly, all of the interests in Mezzanine A Borrower, any Mezzanine A SPE Component Entity, or, solely to the extent the Mezzanine A Loan is being assumed by a Mezzanine A Transferee, Mezzanine A Transferee (similar to the ownership by Borrower of the interests in Mezzanine A Borrower) and any Mezzanine A SPE Component Entity, (ii) assume the Loan and all the agreements of Borrower under the Loan Documents (and without limiting the foregoing, all of the ownership interests in the Mezzanine A Borrower solely to the extent the Mezzanine A Loan is being assumed by a Mezzanine A Transferee, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement), which shall be evidenced by new loan documents substantially similar (in form and substance) to the Loan Documents and otherwise reasonably acceptable to Lender in order to properly reflect the new ownership structure and the pledge of the interests thereunder and (iii) otherwise have a legal and ownership structure that is (A) substantially the same as Borrower, or (B) at least as favorable to Lender, as determined by Lender in its reasonable discretion, as the legal and ownership structure of Borrower; (l) Mezzanine A Borrower or Mezzanine A Transferee, as applicable, shall (i) own, directly, all of the interests in the Mortgage Borrower and any Mortgage SPE Component Entity or, solely to the extent the Mortgage Loan is being assumed by a Successor Property Owner, Successor Property Owner (similar to the ownership by Mezzanine A Borrower of the interests in Mortgage Borrower) and any Mortgage SPE Component Entity, (ii) assume the Mezzanine A Loan and all the agreements of Mezzanine A Borrower under the Mezzanine A Loan Documents (and without limiting the foregoing, all of the ownership interests in the Mortgage Borrower solely to the extent the Mortgage Loan is being assumed by a Successor Property Owner, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement), which shall be evidenced by new loan documents substantially similar (in form and substance) to the Mezzanine A Loan Documents and otherwise reasonably acceptable to Mezzanine A Lender and Lender in order to properly reflect the new ownership structure and the pledge of the interests thereunder and (iii) otherwise have a legal and ownership structure that is (A) substantially the same as Mezzanine A Borrower, or (B) at least as favorable to Lender, as determined by Lender in its reasonable discretion, as the legal and ownership structure of Mezzanine A Borrower; (m) Borrower shall deliver, at its election and at its sole cost and expense, either (i) an endorsement to the UCC title insurance policy delivered to Lender on the Closing Date or (ii) a new UCC title insurance policy acceptable to Lender, in each case, with respect to the Collateral as a valid first lien on all of the ownership interests in Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and naming the Transferee as owner of Mezzanine A Borrower or the Mezzanine A Transferee, as applicable, which endorsement shall insure that, as of the date of the assumption agreement entered into pursuant to this Section 6.4, the Collateral shall not be subject to any additional exceptions or liens other than those contained in the relevant UCC title insurance policy (which may include Permitted Encumbrances); and (n) To the extent the Mortgage Loan and/or the Mezzanine A Loan is outstanding, Lender shall have received evidence that Mortgage Borrower shall have complied with the requirements of Section 6.4 of the Mortgage Loan Agreement and Mezzanine A Borrower shall have complied with the requirements of Section 6.4 of the Mezzanine A Loan Agreement.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Permitted Property Transfer (Assumption). Notwithstanding the foregoing provisions of this Article 6, no transfer of all of the Properties, the Mezzanine A Collateral Properties and the Collateral and assumption of the Loan and the Security Instrument shall occur until the earlier of (I) sixty (60) days after a Securitization of the Loan, Securitization (as defined in the Mezzanine A Loan Agreement) of the Mezzanine A Loan or Securitization (as defined in the Mortgage Loan Agreement) of the Mortgage Loan and (II) one hundred twenty (120) days after the Closing Date. Otherwise, in addition to Borrower’s other rights expressly permitted under this Article 6, (X) a transfer of all of the Properties, all of the Mezzanine A Collateral Properties and the Collateral or (Y) a transfer of more than forty-nine percent (49%) of the direct or indirect legal or beneficial interests in Borrower, Mezzanine A Borrower and Mortgage Borrower, and in each instance provided that the same do not otherwise constitute a Permitted Transfer or are otherwise permitted by Section 6.3 (a “Majority Equity Transfer”) and, in each case, to the extent the Mortgage Loan is simultaneously being assumed by a Successor Property Owner, the related and concurrent assumption of the Mortgage Loan by a Successor Property Owner pursuant to Section 6.4 of the Mortgage Loan Agreement, the Mezzanine A Loan by a Transferee (as defined in the Mezzanine A Loan Agreement) (hereafter, “Mezzanine A Transferee”) pursuant to Section 6.4 of the Mezzanine A Loan Agreement, Agreement and the Loan by a Person (a “Transferee”) shall be permitted without Lender’s consent (each, a “Permitted Assumption”) provided that ▇▇▇▇▇▇ Lender receives thirty (30) days’ prior written notice of such Permitted Assumption and no Event of Default has occurred and is continuing at the time the Permitted Assumption is consummated. In connection with any Permitted Assumption pursuant to this Section 6.4, Borrower shall be required to satisfy the following:
(a) Borrower shall pay Lender, Mortgage Lender and Mezzanine A Mortgage Lender (without duplicating any payment made under the Mortgage Loan Agreement) a fee equal to $250,000.00 at the time such Permitted Assumption is consummated, which amount shall be split pro rata among the Loan, Mortgage Loan and Mezzanine A the Mortgage Loan;
(b) Borrower shall pay any and all reasonable out of pocket costs incurred in connection with such Permitted Assumption (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes);
(i) Transferee or, in the case of a Majority Equity Transfer, Borrower, Borrower and (ii) Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and (iii) Successor Property Owner or Mortgage Borrower, as applicable, must be directly or indirectly twenty-five percent (25%) or more collectively owned, and Controlled by, one or more Qualified Equityholders;
(d) With respect to a transfer of the Properties, if applicable, Successor Property Owner shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents, with respect to a transfer of the Mezzanine A Collateral, if applicable, Mezzanine A Transferee shall assume all of the obligations of Mezzanine A Borrower under the Mezzanine A Loan Documents and with respect to a transfer of the Collateral, if applicable, Transferee shall assume all of the obligations of Borrower under the Loan Documents, in a manner reasonably satisfactory to Lender, Mezzanine A Lender or Mortgage Lender, as applicable, in all material respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender, Mezzanine A Lender or Mortgage Lender, as applicable;
(e) After giving effect to the Permitted Assumption, (i) Transferee and any SPE Component Entity or, in the case of a Majority Equity Transfer, Borrower and each SPE Component Entity and (ii) Successor Property Owner or Mortgage Borrower, as applicable, and each Mortgage SPE Component Entity and Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and any Mezzanine A SPE Component Entity must satisfy the applicable requirements of Article 5 hereof, hereof and Article 5 of the Mortgage Loan Agreement and Article 5 of the Mezzanine A Loan Agreement, respectively, and must be able to make all of the applicable representations set forth in Section 3.30 hereof, hereof and Section 3.30 of the Mortgage Loan Agreement and Section 3.30 of the Mezzanine A Loan Agreement, respectively, no Event of Default, Mortgage Loan Event of Default or Mezzanine A Mortgage Loan Event of Default shall otherwise occur as a result of such transfer, and Transferee, any SPE Component Entity, Mezzanine A Transferee, any Mezzanine A SPE Component Entity, Successor Property Owner and any Mortgage SPE Component Entity shall deliver (A) all organizational documentation reasonably requested by LenderL▇▇▇▇▇, which shall be reasonably satisfactory to Lender, and (B) all certificates and agreements necessary to evidence the Permitted Assumption and any due formation, execution enforceability legal opinions reasonably required by ▇L▇▇▇▇▇;
(f) Lender shall have reasonably approved the Successor Property Owner’s or Mortgage Borrower’s, as applicable, owner’s title insurance policy with respect to the Property, subject only to the Permitted Encumbrances; provided, that any owner’s title insurance policy with respect to all of the Properties in substantially the same form delivered to Lender in connection with the closing of the Loan (subject only to Permitted Encumbrances) shall be deemed reasonably acceptable to Lender;
(g) Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement);
(h) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender a New Non-Consolidation Opinion in respect of such transfer in form and substance reasonably satisfactory to Lender which opinion may be relied upon by ▇L▇▇▇▇▇ and the Rating Agencies with respect to the proposed transfer;
(i) With respect to any KYC Transfer, (A) Lender shall receive (x) an Officer’s Certificate from Borrower certifying that each KYC Transferee is not a Prohibited Person, in each case, effective as of the date of the consummation of the Permitted Assumption, and (y) Satisfactory Search Results for each KYC Transferee and (B) each KYC Transferee has satisfied Lender’s “know your customer” requirements;
(j) Immediately upon the consummation of a Permitted Assumption pursuant to this Section 6.4, any of (1) a Qualified Equityholder which has a Net Worth as of the date of such Permitted Assumption equal to, or in excess of, $750,000,000, (2) a Person which has a Net Worth as of the date of such Permitted Assumption equal to, or in excess of, $750,000,000 and which otherwise satisfies the requirement of a Qualified Equityholder or (3) one or more substitute guarantors reasonably acceptable to Lender as of the date of such the Public Sale or such Permitted Assumption, as applicable, and in all cases subject to Lender’s receipt of (x) an Officer’s Certificate certifying that such Person is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable transfer, and (y) Satisfactory Search Results for such Person and (B) such Person has satisfied Lender’s “know your customer” requirements (any such person that qualified with the requirements of subclauses (1), (2) or (3), each a “Replacement Guarantor”) shall have executed and delivered a replacement guaranty substantially in the form of the Guaranty (or otherwise in a form reasonably satisfactory to Lender) and, together with Borrower or Transferee, a replacement environmental indemnity agreement in the form of the Environmental Indemnity or otherwise in a form reasonably satisfactory to Lender (collectively, a “Replacement Guaranty”) or shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity arising from and after the date of the Public Sale or Permitted Assumption, as applicable. Guarantor shall be released from all liability under this Agreement, the Note, the Security Instruments, the Guaranty, the Environmental Indemnity and the other Loan Documents accruing from and after the date of such Replacement Guaranty (other than liabilities caused by Guarantor and/or its Affiliates) or such assumption by Replacement Guarantor. The foregoing release shall be effective automatically upon the date of such Replacement Guaranty or such assumption by Replacement Guarantor, but ▇L▇▇▇▇▇ agrees to provide written evidence thereof if the same is reasonably requested by ▇B▇▇▇▇▇▇▇. Notwithstanding anything to the contrary contained herein, ▇L▇▇▇▇▇’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Assumption;
(k) Transferee shall (i) own, directly, all of the interests in Mezzanine A Borrower, the Mortgage Borrower and any Mezzanine A Mortgage SPE Component Entity, Entity or, solely to the extent the Mezzanine A Mortgage Loan is being assumed by a Mezzanine A TransfereeSuccessor Property Owner, Mezzanine A Transferee shall own, directly, all of the interests in the Successor Property Owner (similar to in the same manner as the ownership by Borrower of the interests in Mezzanine A Mortgage Borrower) and any Mezzanine A Mortgage SPE Component Entity, (ii) assume the Loan and all the agreements of Borrower under the Loan Documents (and without limiting the foregoing, all of the ownership interests in the Mezzanine A Mortgage Borrower solely to the extent the Mezzanine A Mortgage Loan is being assumed by a Mezzanine A TransfereeSuccessor Property Owner, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement), which shall be evidenced by new loan documents substantially similar (in form and substance) to the Loan Documents and otherwise reasonably acceptable to Lender in order to properly reflect the new ownership structure and the pledge of the interests thereunder and (iii) otherwise have a legal and ownership structure that is (A) substantially the same as Borrower, or (B) at least as favorable to Lender, as determined by Lender in its reasonable discretion, as the legal and ownership structure of Borrower;
(l) Mezzanine A Borrower or Mezzanine A Transferee, as applicable, shall (i) own, directly, all of the interests in the Mortgage Borrower and any Mortgage SPE Component Entity or, solely to the extent the Mortgage Loan is being assumed by a Successor Property Owner, Successor Property Owner (similar to the ownership by Mezzanine A Borrower of the interests in Mortgage Borrower) and any Mortgage SPE Component Entity, (ii) assume the Mezzanine A Loan and all the agreements of Mezzanine A Borrower under the Mezzanine A Loan Documents (and without limiting the foregoing, all of the ownership interests in the Mortgage Borrower solely to the extent the Mortgage Loan is being assumed by a Successor Property Owner, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement), which shall be evidenced by new loan documents substantially similar (in form and substance) to the Mezzanine A Loan Documents and otherwise reasonably acceptable to Mezzanine A Lender and Lender in order to properly reflect the new ownership structure and the pledge of the interests thereunder and (iii) otherwise have a legal and ownership structure that is (A) substantially the same as Mezzanine A Borrower, or (B) at least as favorable to Lender, as determined by Lender in its reasonable discretion, as the legal and ownership structure of Mezzanine A Borrower;
(m) Borrower shall deliver, at its election and at its sole cost and expense, either (i) an endorsement to the UCC title insurance policy delivered to Lender on the Closing Date or (ii) a new UCC title insurance policy acceptable to Lender, in each case, with respect to the Collateral as a valid first lien on all of the ownership interests in Mezzanine A Transferee or Mezzanine A Borrower, as applicable, and naming the Transferee as owner of Mezzanine A Borrower or the Mezzanine A Transferee, as applicable, which endorsement shall insure that, as of the date of the assumption agreement entered into pursuant to this Section 6.4, the Collateral shall not be subject to any additional exceptions or liens other than those contained in the relevant UCC title insurance policy (which may include Permitted Encumbrances); and
(n) To the extent the Mortgage Loan and/or the Mezzanine A Loan is outstanding, Lender shall have received evidence that Mortgage Borrower shall have complied with the requirements of Section 6.4 of the Mortgage Loan Agreement and Mezzanine A Borrower shall have complied with the requirements of Section 6.4 of the Mezzanine A Loan Agreement.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)