Common use of Permitted Conversion to Delaware Statutory Trust Clause in Contracts

Permitted Conversion to Delaware Statutory Trust. Notwithstanding the foregoing or anything herein to the contrary, and provided that no Event of Default has occurred and is continuing, upon thirty (30) days’ written notice to Lender, each Borrower shall be permitted to convert from a Delaware single member limited liability company to a Delaware Statutory Trust (a “Conversion”), at Borrower’s sole cost and expense, provided that the following conditions are met: (i) Lender shall have consented to such Conversion (which consent shall not be unreasonably withheld, conditioned or delayed); (ii) the new Borrower (the “New Borrower”) shall be a single purpose bankruptcy remote entity; (iii) the organizational documents of the New Borrower shall contain single purpose entity and bankruptcy remote provisions substantially similar to those set forth in Article 5 hereof and organizational documents shall otherwise be acceptable to Lender; (iv) The Loan Documents shall be amended as required by Lender, including, but not limited to, an amendment to Article 5 hereof; (v) the New Borrower shall affirm and ratify the Loan Documents as valid and binding, including, but not limited to, all representations, warranties and covenants therein; (vi) Borrower shall have delivered to Lender, without any cost or expense to Lender, either (A) such endorsements to the Title Insurance Policy or (B) a no impact letter from the title company, insuring that fee simple title to the Property is vested in the New Borrower (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Conversion, all in form and substance satisfactory to Lender; (vii) if a Management Agreement is in place at the time of such Conversion, the New Borrower shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of the terms hereof and assign to Lender as additional security for the Loan such new management agreement pursuant to an Assignment of Management Agreement and otherwise reasonably acceptable to Lender; (viii) New Borrower shall furnish an opinion of counsel satisfactory to Lender (A) that New Borrower’s formation documents provide for the matters described in subparagraphs (i) and (ii) above, (B) that the documents delivered in connection with the Conversion have been duly authorized, executed and delivered, and that the Note, the Security Instrument, this Agreement, any modification agreements and the other Loan Documents are valid, binding and enforceable against the New Borrower in accordance with their terms, (C) that the New Borrower has been duly organized, and is validly existing and in good standing, and (D) with respect to such other matters as Lender may reasonably request; (ix) New Borrower shall deliver a New Non-Consolidation Opinion in form, scope and substance acceptable in all respects to Lender; (x) New Borrowers shall provide such other documents as Lender may reasonably require; and (xi) New Borrowers shall have paid to Lender, concurrently with the closing of such Conversion all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and any Rating Agency fees, incurred by Lender in connection with the Conversion.

Permitted Conversion to Delaware Statutory Trust. Notwithstanding the foregoing or anything herein to the contrary, and provided that no Event of Default has occurred and is continuing, upon thirty (30) days’ written notice to Lender, each Borrower shall be permitted to convert from a Delaware single member limited liability company to a Delaware Statutory Trust (a “Conversion”), at Borrower’s sole cost and expense, provided that the following conditions are met: (i) Lender shall have consented to such Conversion (which consent shall not be unreasonably withheld, conditioned or delayed); (ii) the new Borrower (the “New Borrower”) shall be a single purpose bankruptcy remote entity; (iii) the organizational documents of the New Borrower shall contain single purpose entity and bankruptcy remote provisions substantially similar to those set forth in Article 5 hereof and organizational documents shall otherwise be acceptable to Lender; (iv) The Loan Documents shall be amended as required by Lender, including, but not limited to, an amendment to Article 5 hereof; (v) the New Borrower shall affirm and ratify the Loan Documents as valid and binding, including, but not limited to, all representations, warranties and covenants therein; (vi) Borrower shall have delivered to Lender, without any cost or expense to Lender, either (A) such endorsements to the Title Insurance Policy or (B) a no impact letter from the title company, insuring that fee simple title to the Property is vested in the New Borrower (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Conversion, all in form and substance satisfactory to Lender; (vii) if a Management Agreement is in place at the time of such Conversion, the New Borrower shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of the terms hereof and assign to Lender as additional security for the Loan such new management agreement pursuant to an Assignment of Management Agreement and otherwise reasonably acceptable to Lender; (viii) New Borrower shall furnish an opinion of counsel satisfactory to Lender (A) that New Borrower’s formation documents provide for the matters described in subparagraphs (i) and (ii) above, (B) that the documents delivered in connection with the Conversion have been duly authorized, executed and delivered, and that the Note, the Security Instrument, this Agreement, any modification agreements and the other Loan Documents are valid, binding and enforceable against the New Borrower in accordance with their terms, (C) that the New Borrower has been duly organized, and is validly existing and in good standing, and (D) with respect to such other matters as Lender may reasonably request; (ix) New Borrower shall deliver a New Non-Consolidation Opinion in form, scope and substance acceptable in all respects to Lender; (x) New Borrowers shall provide such other documents as Lender may reasonably require; and (xix) New Borrowers shall have paid to Lender, concurrently with the closing of such Conversion all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and any Rating Agency fees, incurred by Lender in connection with the Conversion.