Common use of Conditions Precedent to Consummation of the Distribution Clause in Contracts

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWD, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD shall have mailed the Information Statement (and such other information concerning SWAY, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to STWD, to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY and the SWAY Manager shall have executed and delivered the SWAY Management Agreement; (k) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWD, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDInvenTrust, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD InvenTrust shall have declared authorized the Distribution, which declaration authorization may be made or withheld at in its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SECbecome effective, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD InvenTrust shall have mailed the Information Statement (and such other information concerning SWAYHighlands, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD the transfer of the Highlands Assets (other than any Highlands Asset that is a Deferred Asset) and Highlands Liabilities (other than any Highlands Liability that is a Deferred Liability) contemplated to be transferred from InvenTrust to Highlands on or prior to the Distribution shall have occurred as contemplated by Section 2.1, and the transfer of the InvenTrust Assets (other than any InvenTrust Asset that is a Deferred Asset) and InvenTrust Liabilities (other than any InvenTrust Liability that is a Deferred Liability) contemplated to be transferred from Highlands to InvenTrust on or prior to the Distribution Date shall have occurred as contemplated by Section 2.1; (f) Highlands shall have obtained an opinion from Sidley Austin Hunton & ▇▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDHighlands, to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD Highlands has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized operated in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet satisfy the requirements for qualification and taxation as a REIT; (g) STWD shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY and the SWAY Manager shall have executed and delivered the SWAY Management Agreement; (k) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (lh) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (mi) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and; (nj) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDInvenTrust, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable; (k) the articles of amendment and restatement and the amended and restated bylaws of Highlands, each substantially in the forms filed by Highlands with the SEC as exhibits to the Registration Statement, shall have been approved in the manner required by Maryland law and the articles of amendment and restatement shall have been accepted for record by the SDAT; (l) the executive officers and directors of Highlands will be as set forth in the Information Statement; (m) any employee of InvenTrust or its Subsidiaries (other than employees of Highlands or its Subsidiaries) that is currently an officer or director of Highlands or any of its Subsidiaries shall have resigned from such officer or director position; (n) InvenTrust shall have made the Capital Contribution to Highlands; and (o) no employee of any member of the InvenTrust Group shall be an authorized signatory on a bank account maintained by any member of the Highlands Group.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDExelon, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Exelon shall have declared the Distribution, which declaration may be made or withheld at in its absolute and sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Exelon shall have mailed the Information Statement (and such other information concerning SWAY, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Lawor notice of internet availability thereof) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions Exelon shall have been taken; (e) STWD shall have obtained received a private letter ruling from the IRS and an opinion from Sidley Austin LLP, in each case in form and substance reasonably satisfactory to STWDExelon, together substantially to the effect thatthat the Distribution, commencing together with STWD’s initial taxable year that ended on December 31certain related transactions, 2009, STWD has been organized in conformity with the requirements for qualification will qualify as a REIT tax-free reorganization under sections 355 and 368(a)(1)(D) of the Code; (e) Exelon shall have received an opinion from Duff & P▇▇▇▇▇, LLC, in form and its actual method of operation through the date of this letter has enabledsubstance satisfactory to Exelon, and its proposed method of operation will enable, it as to meet the requirements for qualification and taxation as a REITcertain solvency matters; (f) SWAY the NASDAQ Listing Application shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Applicationbeen approved, subject to official notice of issuancedistribution; (g) no order, injunction or decree issued by any Governmental Authority of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution shall be in effect, and no other event shall have occurred or failed to occur that prevents the consummation of all or any portion of the Distribution; (h) the transactions described in Article II (other than in respect of Deferred Assets or Deferred Liabilities) shall have been completed, except for such steps as Exelon in its sole discretion shall have determined may be completed after the Distribution Date; (i) ExGen shall have entered into the ExGen Credit Facility; (j) SWAY and the SWAY Manager Exelon shall have executed completed its own financing transactions contemplated to occur on or prior to the Distribution Date, including amending and delivered the SWAY Management Agreementrestating its existing credit facility; (k) no events or developments shall have occurred prior to the Distribution that, in the judgment of the Exelon board of directors, would result in the Distribution having a material adverse effect on Exelon or its shareholders; (l) Constellation shall have adopted the amended and restated articles of incorporation and amended and restated bylaws, as provided in Section 3.6(a); (m) each of the Ancillary Agreements shall have been executed and delivered by each of the parties party thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement;full force and effect; and (ln) any required material Governmental Approvals and other Consents necessary to consummate the Transactions Distribution or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWD, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDInland American, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Inland American shall have declared authorized the Distribution, which declaration authorization may be made or withheld at in its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SECbecome effective, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Inland American shall have mailed the Information Statement (and such other information concerning SWAYXenia, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD the transfer of the Xenia Assets (other than any Xenia Asset that is a Deferred Asset) and Xenia Liabilities (other than any Xenia Liability that is a Deferred Liability) contemplated to be transferred from Inland American to Xenia on or prior to the Distribution shall have occurred as contemplated by Section 2.1, and the transfer of the Inland American Assets (other than any Inland American Asset that is a Deferred Asset) and Inland American Liabilities (other than any Inland American Liability that is a Deferred Liability) contemplated to be transferred from Xenia to Inland American on or prior to the Distribution Date shall have occurred as contemplated by Section 2.1; (f) Xenia shall have obtained an opinion from Sidley Austin Hunton & ▇▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDXenia, to the effect that, commencing beginning with STWDXenia’s initial short taxable year that ended commencing on December 31January 5, 20092015, STWD Xenia has been organized and operated in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, current and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet satisfy the requirements for qualification and taxation as a REIT; (g) STWD shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY and the SWAY Manager shall have executed and delivered the SWAY Management Agreement; (kh) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (li) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (mj) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and; (nk) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDInland American, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable; (l) the articles of amendment and restatement and the amended and restated bylaws of Xenia, each substantially in the forms filed by Xenia with the SEC as exhibits to the Registration Statement, shall have been adopted and the articles of amendment and restatement shall have been accepted for record by the SDAT; (m) the executive officers and directors of Xenia will be as set forth in the Information Statement; (n) any employee of Inland American or its Subsidiaries (other than employees of Xenia or its Subsidiaries) that is currently an officer or director of Xenia or any of its Subsidiaries shall have resigned from such officer or director position; (o) Xenia and the applicable lenders shall have entered into the Credit Facility; (p) Inland American shall have made the Capital Contribution and the Debt Capital Contribution to Xenia; (q) Xenia shall have the cash amounts described in Section 2.8(c). (r) the existing credit facility of Inland American shall have been terminated and Inland American shall have entered into a new credit facility upon the terms and with such lenders at it shall determine in its sole discretion; and (s) no employee of any member of the Inland American Group shall be an authorized signatory on a bank account maintained by any member of the Xenia Group.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDSRC, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD SRC shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD SRC shall have mailed the Information Statement (and such other information concerning SWAYSMTA, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD SMTA shall have obtained an opinion from Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDSMTA, to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAYSMTA’s initial taxable year ending on December 31, 20142018, SWAY SMTA will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REITREIT under the Code; (f) SRC shall not be required to register as an investment company under the Investment Company Act; (g) STWD SMTA shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (ji) SWAY SMTA and the SWAY SMTA Manager shall have executed and delivered the SWAY SMTA Asset Management Agreement; (kj) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (lk) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (ml) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority Law shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; (m) Spirit Realty, L.P. shall have entered into a purchase agreement with one or more third parties pursuant to which Spirit Realty, L.P. will sell to such third party or parties the shares of preferred stock of Spirit MTA SubREIT, Inc. that Spirit Realty, L.P. shall receive in connection with certain of the transactions set forth in Section 2.1 of the Disclosure Schedule; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDSRC, exercised in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDNewcastle, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Newcastle shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Newcastle shall have mailed the Information Statement (and such other information concerning SWAYNew Residential, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD Newcastle shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDNewcastle, to the effect that, commencing with STWDNewcastle’s initial taxable year that ended on December 31, 20092002, STWD Newcastle has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY New Residential shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to SWAYNew Residential, to the effect that, commencing with SWAYNew Residential’s initial taxable year ending on December 31, 20142013, SWAY will be New Residential has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD Newcastle shall not be required to register as an investment company under the Investment Company Act; (h) SWAY New Residential shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY New Residential and the SWAY Manager shall have executed and delivered the SWAY New Residential Management AgreementAgreement and the Manager shall be registered under the Investment Advisors Act; (k) the Ancillary Agreements Agreements, if any, shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDNewcastle, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDAshford Trust, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Ashford Trust shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Ashford Trust shall have mailed the Information Statement (and such other information concerning SWAYAshford Prime, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD Ashford Trust shall have obtained an opinion from Sidley Austin ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDAshford Trust, to the effect that, commencing with STWDAshford Trust’s initial taxable year that ended on December 31, 20092003, STWD Ashford Trust has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this such opinion letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY Ashford Prime shall have obtained an opinion from Sidley Austin ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to SWAYAshford Prime, to the effect that, commencing with SWAYAshford Prime’s initial taxable year ending on December 31, 20142013, SWAY will be Ashford Prime has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD Ashford Trust shall not be required to register as an investment company under the Investment Company ActAct of 1940; (h) SWAY Ashford Prime shall not be required to register as an investment company under the Investment Company ActAct of 1940; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY and the SWAY Manager shall have executed and delivered the SWAY Management Agreement; (k) each of the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (lk) any material Governmental Approvals and other third-party Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (l) to the extent the equity interest in Ashford Prime, Ashford Prime OP or any Subsidiaries of such entities are subject to any pledge, guaranty or other obligation in favor of Keybanc Capital Markets or Keybank, National Association, pursuant to the Ashford Trust Credit Agreement, each and every such pledge, guaranty or other obligation shall have been released (exclusive of any equity interest in Ashford Prime OP owned by Ashford Trust OP following the completion of the Separation and Distribution); (m) the consummation of the Transactions shall not cause Ashford Trust OP or Ashford Trust to breach any material covenants under the Ashford Trust Credit Agreement; (n) The Separation shall have been completed in accordance with Article II and Ashford Prime or Ashford Prime OP shall have assumed all of the Assumed Guarantees; (o) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (np) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDAshford Trust, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDNHF, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD NHF shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD NHF shall have mailed the Information Statement (and such other information concerning SWAYNXRT, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state “blue sky sky” Laws in connection with the Transactions shall have been taken; (e) STWD Freedom REIT shall have obtained an opinion from Sidley Austin Dechert LLP, in the form attached hereto as Exhibit B-1, to the effect that, Freedom REIT was organized and substance reasonably satisfactory operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its initial tax year that ended on December 31, 2013 and for its tax year ended on December 31, 2014, and that Freedom REIT’s organization, actual method of operation through the date of such opinion letter and its proposed method of operation will enable Freedom REIT to STWDcontinue to meet the requirements for qualification and taxation as a REIT for the taxable year ending on December 31, 2015 and for future taxable years; (f) NXRT shall have obtained (i) an opinion from Dechert LLP, in the form attached hereto as Exhibit B-1 on which it (and its tax counsel, ▇▇▇▇▇ Day) can rely, to the effect that, Freedom REIT was organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its initial tax year that ended on December 31, 2013 and that Freedom REIT’s organization, actual method of operation through the date of such opinion letter and its proposed method of operation will enable Freedom REIT to continue to meet the requirements for qualification and taxation as a REIT for the taxable year ending on December 31, 2015 and for future taxable years; and (ii) an opinion from ▇▇▇▇▇ Day, in the form attached hereto as Exhibit B-2, to the effect that, commencing with STWDNXRT’s initial first taxable year that ended on December 31as a separate public company, 2009, STWD NXRT has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, Code and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT, which opinion will expressly rely on the opinion from Dechert LLP described in (i) regarding Freedom REIT’s qualification as a REIT; (g) STWD NXRT shall not be required to register as an investment company under the Investment Company ActAct of 1940; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (i) the approval by NHF’s shareholders of the Advisory Agreement; (j) SWAY NHF, NXRT, Freedom REIT, the Adviser and the SWAY Manager NHF’s adviser shall have executed and delivered received an exemptive order of the SWAY Management AgreementSEC under the Investment Company Act of 1940 permitting the Transactions; (k) each of this Agreement and the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to this Agreement or to any of the Ancillary Agreements will be in material breach of any such agreement; (l) any material Governmental Approvals and other Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) the Separation shall have been completed in accordance with Article II; (n) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; (o) the NXRT Board shall have duly elected all individuals specified in the Information Statement as members of the NXRT Board who have not yet been elected as members of the NXRT Board; and (np) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDNHF, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDWPC, in its sole and absolute discretion, at or before the Effective Time: (a) the Separation shall have occurred; (b) the NLOP Financing Arrangements shall have been executed and the conditions for borrowing thereunder satisfied, and $382.4 million from the borrowings under the NLOP Financing Arrangements shall have been transferred to WPC, in each case in accordance with Section 2.1 of the Disclosure Schedule; (c) the board of directors of STWD WPC shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (bd) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (ce) STWD WPC shall have mailed the Information Statement (and such other information concerning SWAYNLOP, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (df) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to STWD, to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD WPC shall not be required to register as an investment company under the Investment Company Act; (h) SWAY NLOP shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY the Ancillary Agreements, including the NLOP Advisory Agreements and the SWAY Manager shall have executed and delivered the SWAY Management Tax Maters Agreement; (k) the Ancillary Agreements , shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (lk) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (ml) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority Law shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (nm) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDWPC, exercised in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDNewcastle, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Newcastle shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Newcastle shall have mailed the Information Statement (and such other information concerning SWAYNew Senior, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD Newcastle shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDNewcastle, to the effect that, commencing with STWDNewcastle’s initial taxable year that ended on December 31, 20092002, STWD Newcastle has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY New Senior shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to SWAYNew Senior, to the effect that, commencing with SWAYNew Senior’s initial taxable year ending on December 31, 2014, SWAY will be New Senior has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD Newcastle shall not be required to register as an investment company under the Investment Company Act; (h) SWAY New Senior shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY New Senior and the SWAY Manager shall have executed and delivered the SWAY New Senior Management AgreementAgreement and the Manager shall be registered under the Investment Advisors Act; (k) the Ancillary Agreements Agreements, if any, shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDNewcastle, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDWPC, in its sole and absolute discretion, at or before the Effective Time: (a) the Separation shall have occurred; (b) the NLOP Financing Arrangements shall have been executed and the conditions for borrowing thereunder satisfied, and $ million from the borrowings under the NLOP Financing Arrangements shall have been transferred to WPC, in each case in accordance with Section 2.1 of the Disclosure Schedule; (c) the board of directors of STWD WPC shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (bd) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (ce) STWD WPC shall have mailed the Information Statement (and such other information concerning SWAYNLOP, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (df) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to STWD, to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD WPC shall not be required to register as an investment company under the Investment Company Act; (h) SWAY NLOP shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY the Ancillary Agreements, including the NLOP Advisory Agreements and the SWAY Manager shall have executed and delivered the SWAY Management Tax Maters Agreement; (k) the Ancillary Agreements , shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (lk) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (ml) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority Law shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (nm) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDWPC, exercised in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDEnsign, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Ensign shall have declared the Distribution, which declaration may be made or withheld at in its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD Ensign shall have mailed the Information Statement (and such other information concerning SWAYCareTrust, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions IRS Ruling shall not have been takenrevoked or modified in any material respect; (e) STWD Ensign shall have obtained received (i) an opinion from Sidley Austin of KPMG LLP, in form and substance reasonably satisfactory to STWDEnsign, substantially to the effect that, commencing with STWD’s initial taxable year that ended on December 31, 2009, STWD has been organized in conformity with the respect to certain requirements for qualification as a REIT tax-free treatment under Section 355 of the CodeCode on which the IRS will not rule, such requirements will be satisfied, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (fii) SWAY shall have obtained an opinion from Sidley Austin of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to SWAYEnsign, substantially to the effect that, with respect to certain requirements for tax-free treatment under Section 355 of the Code on which the IRS will not rule, such requirements will be satisfied; (f) CareTrust shall have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to CareTrust, substantially to the effect that, commencing with SWAYCareTrust’s initial taxable year ending on December 31, 2014, SWAY will be CareTrust has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD CareTrust and Ensign shall not have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to CareTrust, substantially to the effect that the Master Leases will be required respected as “true leases” for U.S. federal income tax purposes with respect to register as an investment company under the Investment Company Actcertain facilities; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE NASDAQ shall have approved the NYSE NASDAQ Listing Application, subject to official notice of issuance; (i) Ensign shall have set a Record Date and provided notice thereof to NASDAQ, as provided in Section 3.2(c); (j) SWAY CareTrust shall have completed the financing transactions described in the Information Statement and contemplated to occur on or prior to the Distribution Date, including the issuance of the CareTrust Notes, the entry into the CareTrust Revolver and the SWAY Manager shall have executed and delivered the SWAY Management Agreementincurrence of additional mortgage indebtedness; (k) the Ancillary Agreements CareTrust shall have been executed made the CareTrust Cash Payment, and delivered by each Ensign shall have used a portion of the parties thereto and no party to any CareTrust Cash Payment for the repayment of Indebtedness as described in the Ancillary Agreements will be in material breach of any such agreementInformation Statement; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, decree or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and; (nm) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDEnsign, in its sole discretion, prevents would result in the consummation Distribution having a material adverse effect on Ensign or its stockholders; (n) CareTrust shall have adopted the amended and restated articles of incorporation and amended and restated bylaws, as provided in Section 3.6(a); (o) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (p) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state “blue sky” Laws in connection with the Transactions shall have been taken; and (q) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof or makes the consummation of the Transactions inadvisableshall have been obtained and be in full force and effect.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDNewcastle, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD Newcastle shall have declared the Distribution, which declaration may be made or withheld at its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC;; 1076789.07-NYCSR03A - MSW (c) STWD Newcastle shall have mailed the Information Statement (and such other information concerning SWAYNew Senior, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions shall have been taken; (e) STWD Newcastle shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDNewcastle, to the effect that, commencing with STWDNewcastle’s initial taxable year that ended on December 31, 20092002, STWD Newcastle has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY New Senior shall have obtained an opinion from Sidley Austin Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to SWAYNew Senior, to the effect that, commencing with SWAYNew Senior’s initial taxable year ending on December 31, 2014, SWAY will be New Senior has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD Newcastle shall not be required to register as an investment company under the Investment Company Act; (h) SWAY New Senior shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (j) SWAY New Senior and the SWAY Manager shall have executed and delivered the SWAY New Senior Management AgreementAgreement and the Manager shall be registered under the Investment Advisors Act; (k) the Ancillary Agreements Agreements, if any, shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof shall have been obtained and be in full force and effect; (m) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules 1076789.07-NYCSR03A - MSW of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDNewcastle, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable.

Conditions Precedent to Consummation of the Distribution. The Distribution shall not be effected unless and until the following conditions have been satisfied or waived by STWDHCP, in its sole and absolute discretion, at or before the Effective Time: (a) the board of directors of STWD HCP shall have declared the Distribution, which declaration may be made or withheld at in its sole and absolute discretion; (b) the Registration Statement shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and no proceedings for such purpose shall be pending before, or threatened by, the SEC; (c) STWD HCP shall have mailed the Information Statement (and such other information concerning SWAYQCP, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the Record Holders; (d) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state blue sky Laws in connection with the Transactions HCP shall have received solvency opinions from [·] and [·], each an independent financial advisory firm, in form and substance reasonably satisfactory to HCP, substantially to the effect that, HCP and QCP, respectively, has been takenand will be solvent at all times prior to and immediately after giving effect to the Restructuring and the Distribution; (e) STWD QCP shall have obtained received an opinion from Sidley Austin of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to STWDQCP, substantially to the effect that, commencing on [·], QCP has been organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (f) HCP shall have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to HCP, substantially to the effect that, commencing with STWDHCP’s initial taxable year that ended on ending December 31, 20091985, STWD HCP has been organized in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will enable, it to meet the requirements for qualification and taxation as a REIT; (f) SWAY shall have obtained an opinion from Sidley Austin LLP, in form and substance reasonably satisfactory to SWAY, to the effect that, commencing with SWAY’s initial taxable year ending on December 31, 2014, SWAY will be organized in conformity with the requirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT; (g) STWD shall not be required to register as an investment company under the Investment Company Act; (h) SWAY shall not be required to register as an investment company under the Investment Company Act; (i) the NYSE shall have approved the NYSE Listing Application, subject to official notice of issuance; (h) HCP shall have set a Record Date and provided notice thereof to the NYSE, as provided in Section 3.2(c); (i) the Restructuring shall have been completed in accordance with the Plan of Restructuring; (j) SWAY and the SWAY Manager agreement to effect the Preferred Stock Sale shall have been executed and delivered by the SWAY Management Agreementparties thereto; (k) the Ancillary Agreements certain QCP Subsidiaries shall have been executed completed the financing transactions described in the Information Statement and delivered by each contemplated to occur on or prior to the Distribution Date, including the issuance of QCP Notes and entry into the parties thereto QCP Credit Facility and no party to any of the Ancillary Agreements will be in material breach of any such agreementQCP Backup Facility; (l) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof certain QCP Subsidiaries shall have been obtained and be in full force and effectmade the QCP Cash Payment to the applicable members of the HCP Group; (m) no preliminary or permanent injunction or other order, decree, decree or ruling issued by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions; and; (n) no other event or development shall have occurred or failed to occur that, in the judgment of the board of directors of STWDHCP, in its sole discretion, prevents would make it inadvisable to effect the consummation Distribution; (o) QCP shall have adopted the amended and restated articles of incorporation and amended and restated bylaws, as provided in Section 3.6(a); (p) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and no party to any of the Ancillary Agreements will be in material breach of any such agreement; (q) all other actions and filings necessary or appropriate under applicable federal or state securities Laws and state “blue sky” Laws in connection with the Transactions shall have been taken; and (r) any material Governmental Approvals and Consents necessary to consummate the Transactions or any portion thereof or makes the consummation of the Transactions inadvisableshall have been obtained and be in full force and effect.