PUBLICLY
OFFERED SECURITIES, WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(B)(2);
(2)
LESS THAN TWENTY-FIVE PERCENT (25%) OF EACH
OUTSTANDING CLASS OF EQUITY INTERESTS IN BORROWER ARE HELD BY "BENEFIT PLAN
INVESTORS" WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(F)(2); OR
(3)
BORROWER QUALIFIES AS AN "OPERATING
COMPANY" OR A "REAL ESTATE OPERATING COMPANY" WITHIN THE MEANING OF 29 C.F.R.
§2510.3-101(C) OR (E).
5.26
TRANSFERS.
5.26.1
GENERALLY.
BORROWER SHALL NOT DIRECTLY OR INDIRECTLY MAKE,
SUFFER OR PERMIT THE OCCURRENCE OF ANY TRANSFER OTHER THAN A PERMITTED TRANSFER.
5.26.2
INTENTIONALLY OMITTED.
5.26.3
TRANSFER AND ASSUMPTION.
(A)
SUBJECT TO OBTAINING LENDER'S PRIOR WRITTEN
CONSENT, WHICH MAY BE WITHHELD IN LENDER'S REASONABLE AND ABSOLUTE DISCRETION,
AND SUBJECT TO THE TERMS AND SATISFACTION OF ALL OF THE CONDITIONS PRECEDENT SET
FORTH IN THIS SECTION 5.26.3, BORROWER SHALL HAVE THE RIGHT (WHICH MAY NOT BE
EXERCISED MORE THAN TWICE DURING THE TERM) TO TRANSFER THE PROPERTY TO ONE OR
MORE PARTIES (THE "TRANSFEREE BORROWER") AND HAVE THE TRANSFEREE BORROWER ASSUME
ALL OF BORROWER'S OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND HAVE REPLACEMENT
GUARANTORS AND INDEMNITORS ASSUME ALL OF THE OBLIGATIONS OF THE INDEMNITORS AND
GUARANTORS OF THE LOAN DOCUMENTS (COLLECTIVELY, A "TRANSFER AND ASSUMPTION").
BORROWER MAY MAKE A WRITTEN APPLICATION TO LENDER FOR LENDER'S CONSENT TO THE
TRANSFER AND ASSUMPTION, SUBJECT TO THE CONDITIONS SET FORTH IN PARAGRAPHS (B)
AND (C) OF THIS SECTION 5.26.3.
TOGETHER WITH SUCH WRITTEN APPLICATION,
BORROWER WILL PAY TO LENDER THE REASONABLE REVIEW FEE THEN REQUIRED BY LENDER.
BORROWER ALSO SHALL PAY ON DEMAND ALL OF THE REASONABLE COSTS AND EXPENSES
INCURRED BY LENDER, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, AND
INCLUDING THE FEES AND EXPENSES OF RATING AGENCIES AND OTHER OUTSIDE ENTITIES,
IN CONNECTION WITH CONSIDERING ANY PROPOSED TRANSFER AND ASSUMPTION, WHETHER OR
NOT THE SAME IS PERMITTED OR OCCURS.
(B)
LENDER'S CONSENT, WHICH MAY BE WITHHELD IN
LENDER'S REASONABLE DISCRETION, TO A TRANSFER AND ASSUMPTION SHALL BE SUBJECT TO
THE FOLLOWING CONDITIONS:
(1)
NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING;
48
(2)
LENDER RECEIVES AT LEAST THIRTY (30) DAYS
PRIOR WRITTEN NOTICE OF SUCH TRANSFER;
(3)
BORROWER HAS SUBMITTED TO LENDER TRUE,
CORRECT AND COMPLETE COPIES OF ANY AND ALL INFORMATION AND DOCUMENTS OF ANY KIND
REQUESTED BY LENDER CONCERNING THE PROPERTY, TRANSFEREE BORROWER, REPLACEMENT
GUARANTORS AND INDEMNITORS AND BORROWER;
(4)
EVIDENCE SATISFACTORY TO LENDER HAS BEEN
PROVIDED SHOWING THAT THE TRANSFEREE BORROWER AND SUCH OF ITS AFFILIATES AS
SHALL BE DESIGNATED BY LENDER COMPLY AND WILL COMPLY WITH SECTION 5.13 HEREOF,
AS THOSE PROVISIONS MAY BE MODIFIED BY LENDER TAKING INTO ACCOUNT THE OWNERSHIP
STRUCTURE OF TRANSFEREE BORROWER AND ITS AFFILIATES;
(5)
IF THE LOAN, BY ITSELF OR TOGETHER WITH
OTHER LOANS, HAS BEEN THE SUBJECT OF A SECONDARY MARKET TRANSACTION, THEN LENDER
SHALL HAVE RECEIVED A RATING COMFORT LETTER FROM THE APPLICABLE RATING AGENCIES;
(6)
IF THE LOAN HAS NOT BEEN THE SUBJECT OF A
SECONDARY MARKET TRANSACTION, THEN LENDER SHALL HAVE DETERMINED THAT NO RATING
FOR ANY SECURITIES THAT WOULD BE ISSUED IN CONNECTION WITH