"PERSON"
IS DEFINED AS IN SECTION 7701(A)(1) OF THE CODE);
(III)
BORROWER SHALL HAVE DELIVERED TO LENDER THE FOLLOWING
FULLY-EXECUTED DOCUMENTS, EACH IN A FORM APPROVED BY LENDER IN WRITING:
(A)
COPIES OF ALL DOCUMENTS EVIDENCING OR RELATING TO A TRANSFER OF AN
INTEREST IN THE PROPERTY TO A CO-OWNER TRANSFEREE, AND
(B)
ALL OTHER DOCUMENTS, INSTRUMENTS, OPINIONS AND/OR AGREEMENTS
REASONABLY REQUIRED BY LENDER, INCLUDING WITHOUT LIMITATION, (1) AN ASSIGNMENT
AND ASSUMPTION AGREEMENT, (2) EXECUTION BY EACH CO-OWNER TRANSFEREE AND A
PRINCIPAL OF EACH CO-OWNER TRANSFEREE OF A CO-OWNER INDEMNITY, (3) COPIES OF ALL
ORGANIZATIONAL DOCUMENTS, GOOD STANDING CERTIFICATES, RESOLUTIONS AND CONSENTS
OF EACH CO-OWNER TRANSFEREE IN FORM AND SUBSTANCE ACCEPTABLE TO LENDER, (4) A
CONSENT AND ASSUMPTION AGREEMENT AND (5) AN APPROVED INVESTOR QUESTIONNAIRE WITH
RESPECT TO SUCH CO-OWNER TRANSFEREE IN THE FORM APPROVED BY LENDER; PROVIDED
THAT LENDER SHALL NOT REQUIRE, PURSUANT TO THIS CLAUSE (B), (X) A CONSENT AND
ASSUMPTION AGREEMENT IN ANY FORM OTHER THAN, OR (EXCEPT FOR THE DOCUMENTS
DESCRIBED IN SUBCLAUSES (1), (2), AND (5) OF THIS CLAUSE (B)), ANY DOCUMENT
IMPOSING OBLIGATIONS UPON ANY CO-OWNER TRANSFEREE OR EXISTING BORROWER, OR UPON
ANY PRINCIPAL OF ANY OF THEM, IN ADDITION TO THOSE CONTAINED IN, THE FORM OF
CONSENT AND ASSUMPTION AGREEMENT ATTACHED HERETO AS SCHEDULE VIII, OR ANY CHANGE
TO THE OPINIONS OF COUNSEL DELIVERED IN CONNECTION WITH THE MODIFICATION OF THE
LOAN, OR ANY OPINION SUPPLEMENTAL TO ANY SUCH OPINION, EXCEPT, IN EITHER SUCH
CASE, AS MAY BE NECESSARY TO ACCOMMODATE ANY MATERIAL CHANGE IN FACT OR LAW
OCCURRING AFTER THE DATE OF THIS AGREEMENT;
(IV)
THE PROPERTY SHALL CONTINUE TO BE SUBJECT TO A PROPERTY MANAGEMENT
AGREEMENT WITH A QUALIFYING PROPERTY MANAGER OWNED AND CONTROLLED BY THE SPONSOR
OR OTHERWISE ACCEPTABLE TO LENDER, PURSUANT TO A MANAGEMENT AGREEMENT APPROVED
BY LENDER IN ITS SOLE DISCRETION;
(V)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE CHANGE IN THE FINANCIAL
CONDITION IN THE BORROWER OR THE SPONSOR OR IN THE FINANCIAL OR PHYSICAL
CONDITION OF THE PROPERTY FROM THE MODIFICATION DATE;
(VI)
EACH ADDITIONAL CO-OWNER TRANSFEREE MUST BE ORGANIZED AS A
DELAWARE LIMITED LIABILITY COMPANY AND A SPECIAL PURPOSE ENTITY PURSUANT TO A
CO-OWNER
57
TRANSFEREE OPERATING AGREEMENT SUBSTANTIALLY IN THE FORM SET FORTH ON SCHEDULE
IX OR OTHERWISE AS APPROVED BY LENDER;
(VII)
BORROWER SHALL PAY LENDER'S REASONABLE AND CUSTOMARY OUT-OF-POCKET
COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES,
INCURRED BY LENDER IN CONNECTION WITH THE TRANSFER AND ANY FEES CHARGED BY
RATING AGENCIES, AND BORROWER PAYS LENDER, CONCURRENTLY WITH THE CLOSING OF ANY
TRANSFER AN ADMINISTRATIVE FEE (UNLESS SUCH TRANSFER OCCURS ON THE MODIFICATION
DATE) OF $1,000 PER TRANSFER, PROVIDED THAT FOR ANY TRANSFER OF MORE THAN 49% OF
THE INTERESTS IN THE PROPERTY, BORROWER SHALL (A) OBTAIN A RATING CONFIRMATION
AND (B) PAY A TRANSFER FEE EQUAL TO ONE-QUARTER OF ONE PERCENT (0.25%) OF THE
THEN OUTSTANDING PRINCIPAL BALANCE OF THE LOAN AS OF THE DATE OF THE CLOSING OF
THE FIRST TRANSFER AND ONE-HALF OF ONE PERCENT (0.5%) OF