UPDATED INSOLVENCY OPINION TO
LENDER, WHICH OPINION SHALL BE IN FORM, SCOPE AND SUBSTANCE REASONABLY
SATISFACTORY TO LENDER AND THE RATING AGENCIES.
5.2.11
Permitted Transfer.
(A)
WITHOUT LIMITING THE PROVISIONS OF
SECTION 5.2.10 HEREOF, IN THE EVENT THAT MORTGAGE BORROWER IS PERMITTED TO
TRANSFER ALL OF THE PROPERTIES PURSUANT TO SECTION 21 OF THE SECURITY
INSTRUMENT, LENDER SHALL NOT UNREASONABLY WITHHOLD ITS CONSENT TO A ONE-TIME
SALE, ASSIGNMENT, OR OTHER TRANSFER OF ALL OF THE PROPERTIES TO A PERMITTED
TRANSFEREE (DEFINED BELOW), PROVIDED THAT (W) LENDER RECEIVES SIXTY (60) DAYS'
PRIOR WRITTEN NOTICE OF SUCH TRANSFER, (X) BORROWER OR SUCH PERMITTED TRANSFEREE
SHALL PAY, CONCURRENTLY WITH THE CLOSING OF SUCH SALE, ASSIGNMENT OR TRANSFER, A
NON-REFUNDABLE TRANSFER FEE IN AN AMOUNT EQUAL TO ONE-QUARTER OF ONE PERCENT
(0.25%) OF THE THEN OUTSTANDING PRINCIPAL BALANCE OF THE NOTE, (Y) NO EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THIS AGREEMENT, THE PLEDGE
AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS AND (Z) UPON THE SATISFACTION
(IN THE REASONABLE DETERMINATION OF LENDER) OF SUCH CONDITIONS AS MAY BE
REASONABLY IMPOSED BY LENDER, WHICH MAY INCLUDE, BUT SHALL NOT BE LIMITED TO,
THE FOLLOWING MATTERS:
(I)
BORROWER OR SUCH PERMITTED TRANSFEREE
SHALL PAY ANY AND ALL REASONABLE OUT-OF-POCKET COSTS INCURRED IN CONNECTION WITH
THE TRANSFER (INCLUDING, WITHOUT LIMITATION, LENDER'S REASONABLE COUNSEL FEES
AND DISBURSEMENTS AND ALL RECORDING FEES, TITLE INSURANCE PREMIUMS AND MORTGAGE
AND INTANGIBLE TAXES);
(II)
BORROWER SHALL CAUSE THE TRANSFEREE TO
COMPLY WITH ALL OF THE REQUIREMENTS OF SECTION 4.1.35 HEREOF AND TO BE WHOLLY
OWNED AND CONTROLLED BY ONE OR MORE INSTITUTIONAL INVESTORS OR SHALL ITSELF BE
AN INSTITUTIONAL INVESTOR, AND, IN ADDITION, LENDER SHALL BE REASONABLY
SATISFIED THAT EACH SUCH INSTITUTIONAL INVESTOR (1) IS GENERALLY CREDITWORTHY
AND REPUTABLE, (2) IS FREE FROM ANY PENDING OR EXISTING BANKRUPTCY,
REORGANIZATION OR INSOLVENCY PROCEEDINGS IN WHICH SUCH PARTY IS THE DEBTOR,
(3) IS NOT, AT THE TIME OF TRANSFER OR IN THE PAST, A LITIGANT, PLAINTIFF OR
DEFENDANT IN ANY SUIT BROUGHT AGAINST OR BY LENDER, (4) HAS NOT BEEN FOUND BY A
COURT OF COMPETENT JURISDICTION TO HAVE COMMITTED A CRIME, FRAUD OR SIMILAR
MALFEASANCE, (5) HAS NOT BEEN INDICTED FOR ANY CRIME, AND (6) HAS EXPERIENCE AND
A TRACK RECORD IN OWNING AND OPERATING FACILITIES SIMILAR TO THE PROPERTIES, IN
THE CASE OF EACH OF CLAUSES (1) THROUGH (5) ABOVE, AS REASONABLY DETERMINED BY
LENDER BASED ON A LEXIS/NEXIS OR SIMILAR BACKGROUND SEARCH OF EACH SUCH PERSON
AND ITS AFFILIATES (THE "PERMITTED TRANSFEREE");
(III)
BORROWER SHALL CAUSE THE TRANSFEREE TO
ASSUME ALL OF THE OBLIGATIONS OF BORROWER ARISING FROM AND AFTER THE TRANSFER OF
THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND A REPLACEMENT
GUARANTOR ACCEPTABLE TO LENDER IN ALL
116
RESPECTS SHALL ASSUME ALL OF THE OBLIGATIONS OF GUARANTOR, ACCRUING FROM AND
AFTER THE DATE OF SUCH TRANSFER, UNDER THE GUARANTY, IN EACH CASE, IN A MANNER
REASONABLY SATISFACTORY TO LENDER IN ALL RESPECTS, INCLUDING, WITHOUT
LIMITATION, BY ENTERING INTO AN ASSUMPTION AGREEMENT (THE "ASSUMPTION