LAW); THAT,
IMMEDIATELY FOLLOWING THE EVENT WHICH CAUSES SUCH PERSON TO BECOME THE SUCCESSOR
TO THE ISSUER, (A) SUCH PERSON HAS GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF
ANY LIEN, SECURITY INTEREST OR CHARGE, OTHER THAN THE LIEN AND SECURITY INTEREST
OF THIS INDENTURE, TO THE ASSETS SECURING, IN THE CASE OF A CONSOLIDATION OR
MERGER OF THE ISSUER, ALL OF THE NOTES OR, IN THE CASE OF ANY TRANSFER OR
CONVEYANCE OF THE ASSETS SECURING ANY OF THE NOTES, SUCH NOTES, (B) THE TRUSTEE
CONTINUES TO HAVE A VALID PERFECTED FIRST PRIORITY SECURITY INTEREST IN THE
ASSETS SECURING, IN THE CASE OF A CONSOLIDATION OR MERGER OF THE ISSUER, ALL OF
THE NOTES, OR, IN THE CASE OF ANY TRANSFER OR CONVEYANCE OF THE ASSETS SECURING
ANY OF THE NOTES, SUCH NOTES AND (C) SUCH OTHER MATTERS AS THE TRUSTEE, EACH
HEDGE COUNTERPARTY, THE COLLATERAL MANAGER OR ANY NOTEHOLDER MAY REASONABLY
REQUIRE;
(V)
IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION, NO DEFAULT OR EVENT
OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING;
(VI)
THE ISSUER SHALL HAVE DELIVERED TO THE TRUSTEE, THE PREFERRED SHARES
PAYING AGENT, EACH HEDGE COUNTERPARTY, THE COLLATERAL MANAGER AND EACH
NOTEHOLDER, AN OFFICER'S CERTIFICATE AND AN OPINION OF COUNSEL EACH STATING THAT
SUCH CONSOLIDATION, MERGER, TRANSFER OR CONVEYANCE AND SUCH SUPPLEMENTAL
INDENTURE COMPLY WITH THIS ARTICLE 7 AND THAT ALL CONDITIONS PRECEDENT IN THIS
ARTICLE 7 PROVIDED FOR RELATING TO SUCH TRANSACTION HAVE BEEN COMPLIED WITH AND
THAT NO ADVERSE TAX CONSEQUENCES WILL RESULT THEREFROM TO THE HOLDERS OF THE
NOTES, THE PREFERRED SHAREHOLDERS AND ANY HEDGE COUNTERPARTY;
(VII)
AFTER GIVING EFFECT TO SUCH TRANSACTION, THE ISSUER SHALL NOT BE
REQUIRED TO REGISTER AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT;
AND
(VIII)
THE ISSUER HAS RECEIVED ADVICE FROM CADWALADER, WICKERSHAM & TAFT LLP OR
AN OPINION OF OTHER NATIONALLY RECOGNIZED U.S. TAX COUNSEL EXPERIENCED IN SUCH
MATTERS THAT THE ISSUER OR THE PERSON REFERRED TO IN CLAUSE (A) EITHER (A) WILL
BE TREATED AS A QUALIFIED REIT SUBSIDIARY OR ALTERNATIVELY (B) WILL NOT BE
TREATED AS A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS.
(B)
THE CO-ISSUER SHALL NOT CONSOLIDATE OR MERGE WITH OR INTO ANY OTHER
PERSON OR TRANSFER OR CONVEY ALL OR SUBSTANTIALLY ALL OF ITS ASSETS TO ANY
PERSON, UNLESS NO NOTES REMAIN OUTSTANDING OR:
(I)
THE CO-ISSUER SHALL BE THE SURVIVING ENTITY, OR THE PERSON (IF OTHER
THAN THE CO-ISSUER) FORMED BY SUCH CONSOLIDATION OR INTO WHICH THE CO-ISSUER IS
MERGED OR TO WHICH ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE CO-ISSUER ARE
TRANSFERRED SHALL BE A
178
COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF DELAWARE OR SUCH OTHER
JURISDICTION APPROVED BY A MAJORITY OF THE CONTROLLING CLASS; PROVIDED THAT NO
SUCH APPROVAL SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH TRANSACTION
UNDERTAKEN SOLELY TO EFFECT A CHANGE IN THE JURISDICTION OF FORMATION PURSUANT
TO SECTION 7.4; AND PROVIDED, FURTHER, THAT THE SURVIVING ENTITY SHALL EXPRESSLY
ASSUME, BY AN INDENTURE SUPPLEMENTAL HERETO,