Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

x Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended June 30, 2010

Or

 

¨ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the transition period from              to              .

Commission File No. 000-52596

 

 

DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   30-0309068

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

518 Seventeenth Street, 17th Floor

Denver, CO

  80202
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (303) 228-2200

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

As of August 6, 2010, 184,225,172 shares of common stock of Dividend Capital Total Realty Trust Inc., par value $0.01 per share, were outstanding.

 

 

 


Table of Contents

Dividend Capital Total Realty Trust Inc.

Form 10-Q

June 30, 2010

TABLE OF CONTENTS

 

         Page
PART I. FINANCIAL INFORMATION

Item 1.

   Financial Statements:  
   Condensed Consolidated Balance Sheets   3
   Condensed Consolidated Statements of Operations   4
   Condensed Consolidated Statement of Equity   5
   Condensed Consolidated Statements of Cash Flows   6
   Notes to Condensed Consolidated Financial Statements   7

Item 2.

   Management’s Discussion and Analysis of Financial Condition and Results of Operations   29

Item 3.

   Quantitative and Qualitative Disclosures About Market Risk   48

Item 4.

   Controls and Procedures   48
PART II. OTHER INFORMATION  

Item 1.

   Legal Proceedings   48

Item 1A.

   Risk Factors   49

Item 2.

   Unregistered Sales of Equity Securities and Use of Proceeds   49

Item 3.

   Defaults upon Senior Securities   51

Item 4.

   Removed and Reserved   51

Item 5.

   Other Information   51

Item 6.

   Exhibits   52


Table of Contents

PART I. FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(In thousands, except share information)

 

     As of June 30,
2010
    As of December 31,
2009
 
     (Unaudited)        

ASSETS

    

Investments in real property:

    

Land

   $ 576,654      $ 397,939   

Building and improvements

     1,877,820        1,059,930   

Intangible lease assets

     633,214        227,703   

Accumulated depreciation and amortization

     (178,175     (146,164
                

Total net investments in real property*

     2,909,513        1,539,408   

Investment in unconsolidated joint venture

     —          17,386   

Debt related investments, net

     151,027        140,512   

Investments in real estate securities

     15,197        72,686   
                

Total net investments

     3,075,737        1,769,992   

Cash and cash equivalents

     162,572        514,786   

Restricted cash

     33,272        39,677   

Other assets, net

     54,566        38,536   
                

Total Assets

   $ 3,326,147      $ 2,362,991   
                

LIABILITIES AND EQUITY

    

Liabilities:

    

Accounts payable and accrued expenses

   $ 45,323      $ 42,268   

Mortgage notes**

     1,765,572        827,614   

Other secured borrowings

     61,478        13,352   

Financing obligations

     61,778        109,153   

Intangible lease liabilities, net

     107,487        54,979   

Other liabilities

     49,135        43,039   
                

Total Liabilities

     2,090,773        1,090,405   

Equity:

    

Stockholders’ Equity:

    

Preferred stock, $0.01 par value; 200,000,000 shares authorized; none outstanding

     —          —     

Common stock, $0.01 par value; 1,000,000,000 shares authorized; 182,859,281 and 182,838,676 shares issued and outstanding, as of June 30, 2010 and December 31, 2009, respectively

     1,829        1,828   

Additional paid-in capital

     1,646,487        1,646,185   

Distributions in excess of earnings

     (504,083     (449,849

Accumulated other comprehensive income

     (19,383     2,851   
                

Total stockholders’ equity

     1,124,850        1,201,015   

Noncontrolling interests

     110,524        71,571   
                

Total Equity

     1,235,374        1,272,586   
                

Total Liabilities and Equity

   $ 3,326,147      $ 2,362,991   
                

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

* Includes approximately $692.2 million and $707.9 million, after accumulated depreciation and amortization, in consolidated real property variable interest entity investments as of June 30, 2010 and December 31, 2009, respectively.
** Includes approximately $492.2 million and $496.2 million in consolidated mortgage notes in variable interest entity investments as of June 30, 2010 and December 31, 2009, respectively.

 

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DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)

(In thousands, except per share information)

 

     For the Three Months Ended June 30,     For the Six Months Ended June 30,  
     2010     2009     2010     2009  

REVENUE:

        

Rental revenue

   $ 40,758      $ 36,271      $ 79,649      $ 69,912   

Debt related income

     3,698        1,711        7,139        3,372   

Securities income

     770        1,429        2,205        5,130   
                                

Total Revenue

     45,226        39,411        88,993        78,414   

EXPENSES:

        

Rental expense

     10,152        9,055        21,184        18,093   

Real estate depreciation and amortization expense

     15,283        14,810        31,081        28,989   

General and administrative expenses

     1,731        1,410        3,101        2,497   

Asset management fees, related party

     4,338        3,177        7,957        6,131   

Acquisition-related expenses*

     19,080        1,739        19,084        3,776   
                                

Total Operating Expenses

     50,584        30,191        82,407        59,486   

Operating Income

     (5,358     9,220        6,586        18,928   

Other Income (Expenses):

        

Equity in earnings of unconsolidated joint venture

     396        551        941        1,096   

Interest and other income

     40        836        245        2,101   

Interest expense

     (15,768     (14,551     (30,620     (27,186

Loss on derivatives

     (112     (8,601     (112     (8,012

Gain on disposition of securities

     32,272        —          32,272        —     

Other-than-temporary impairment on securities

     (3,695     (6,678     (5,387     (6,678

Provision for loss on debt related investments

     —          —          (2,984     —     
                                

Net income (loss)

     7,775        (19,223     941        (19,751

Net (income) loss attributable to noncontrolling interests

     (267     846        53        1,049   
                                

NET INCOME (LOSS) ATTRIBUTABLE TO COMMON STOCKHOLDERS

   $ 7,508      $ (18,377   $ 994      $ (18,702
                                

NET INCOME (LOSS) PER BASIC AND DILUTED COMMON SHARE

   $ 0.04      $ (0.11   $ 0.01      $ (0.11
                                

WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING

        

Basic

     184,321        170,514        184,301        166,746   
                                

Diluted

     191,997        177,652        191,644        173,922   
                                

 

* Includes approximately $14.0 million and $1.3 million paid to our Advisor for the six months ended June 30, 2010 and 2009, respectively, and $14.0 million and $650,000 paid to our Advisor during the three months ended June 30, 2010 and 2009, respectively.

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

CONDENSED CONSOLIDATED STATEMENT OF EQUITY

(Unaudited)

(In thousands)

 

    Stockholders’ Equity                    
                Additional
Paid-in
Capital
    Distributions  in
Excess of
Earnings
    Accumulated
Other
Comprehensive
Income (Loss)
    Noncontrolling
Interests
    Comprehensive
Gain (Loss)
    Total
Equity
 
               
  Common Stock              
  Shares     Amount              

Balances, December 31, 2009

  182,839      $ 1,828      $ 1,646,185      $ (449,849   $ 2,851      $ 71,571        $ 1,272,586   

Comprehensive loss:

               

Net income (loss)

  —          —          —          994        —          (53   941        941   

Net unrealized change from available-for-sale securities, net of reclassification of OTTI of $1,693

  —          —          —          —          (23,448     (1,023   (24,471     (24,471

Cash flow hedging derivatives

  —          —          —          —          1,214        48      1,262        1,262   
                         

Comprehensive loss

              (22,268     (22,268

Common stock:

               

Issuance of common stock, net of offering costs

  2,874        29        27,124        —          —          —            27,153   

Redemptions of common stock

  (2,854     (28     (26,835     —          —          —            (26,863

Amortization of stock based compensation

  —          —          13        —          —          —            13   

Distributions on common stock

  —          —          —          (55,228     —          —            (55,228

Noncontrolling interests:

               

Contributions of noncontrolling interests

  —            —          —          —          43,319          43,319   

Distributions to noncontrolling interests

  —          —          —          —          —          (3,338       (3,338
                                                       

Balances, June 30, 2010

  182,859      $ 1,829      $ 1,646,487      $ (504,083   $ (19,383   $ 110,524        $ 1,235,374   
                                                       

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

(In thousands)

 

     For the Six Months Ended June 30,  
     2010     2009  

OPERATING ACTIVITIES:

    

Net income (loss)

   $ 941      $ (19,751

Adjustments to reconcile net income (loss) to net cash provided by operating activities:

    

Real estate depreciation and amortization expense

     31,081        28,989   

Equity in earnings of unconsolidated joint venture

     386        —     

Net amortization of real estate securities discounts and premiums

     1,532        360   

Other depreciation and amortization

     810        525   

Loss on derivatives

     112        7,907   

Gain on disposition of securities

     (32,272     —     

Net other-than-temporary impairment on securities

     5,387        6,678   

Provision for loss on debt related investments

     2,984        —     

Loss on disposition of real property

     107        —     

Changes in operating assets and liabilities:

    

(Increase) in restricted cash

     (414     (846

(Increase) in other assets

     (49     (767

Increase in accounts payable and accrued expenses

     1,282        2,144   

Increase in other liabilities

     2,617        1,130   
                

Net cash provided by operating activities

     14,504        26,369   

INVESTING ACTIVITIES:

    

Investment in real property

     (1,339,456     (91,329

Proceeds from unconsolidated joint venture

     17,000        —     

Disposition of real estate securities

     58,371        —     

Investment in debt related investments

     (13,265     —     

Other investing activities

     (1,903     3   
                

Net cash used in investing activities

     (1,279,253     (91,326

FINANCING ACTIVITIES:

    

Mortgage note proceeds

     943,325        52,305   

Mortgage note principal repayments

     (2,704     (1,789

Proceeds from other secured borrowings

     61,478        —     

Repayment of other secured borrowings

     (13,352     (300

Settlement of cash flow hedging derivatives

     (531     (12,735

Proceeds from sale of common stock

     —          136,273   

Offering costs for issuance of common stock, related party

     (2     (11,413

Redemption of common shares

     (28,446     (8,709

Distributions to common stockholders

     (28,111     (21,964

Other financing activities

     (19,122     (328
                

Net cash provided by financing activities

     912,535        131,340   

NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

     (352,214     66,383   

CASH AND CASH EQUIVALENTS, beginning of period

     514,786        540,213   

CASH AND CASH EQUIVALENTS, end of period

   $ 162,572      $ 606,596   
                

Supplemental Disclosure of Cash Flow Information:

    

Assumed mortgage

   $ —        $ 42,000   

Amount issued pursuant to the distribution reinvestment plan

   $ 27,153      $ 26,188   

Cash paid for interest

   $ 27,897      $ 25,237   

Issuances of OP Units for financing obligations

   $ 47,307      $ 7,465   

Non-cash repayment of mortgage note

   $ 3,181      $ —     

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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DIVIDEND CAPITAL TOTAL REALTY TRUST INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

June 30, 2010

(Unaudited)

1. ORGANIZATION

Dividend Capital Total Realty Trust Inc. is a Maryland corporation formed on April 11, 2005 to invest in a diverse portfolio of real property and real estate-related investments. As used herein, “the Company,” “we,” “our” and “us” refer to Dividend Capital Total Realty Trust Inc. and its consolidated subsidiaries and partnerships, except where the context otherwise requires.

We operate in a manner intended to qualify as a real estate investment trust (“REIT”) for federal income tax purposes, commencing with the taxable year ended December 31, 2006, when we first elected REIT status. We utilize an Umbrella Partnership Real Estate Investment Trust (“UPREIT”) organizational structure to hold all or substantially all of our assets through our operating partnership, Dividend Capital Total Realty Operating Partnership, L.P. (our “Operating Partnership”). Furthermore, our Operating Partnership wholly owns a taxable REIT subsidiary, DCTRT Leasing Corp. (our “TRS”), through which we execute certain business transactions that might otherwise have an adverse impact on us and/or our status as a REIT if such business transactions were to occur directly or indirectly through our Operating Partnership.

Our day-to-day activities are managed by Dividend Capital Total Advisors LLC (our “Advisor”), an affiliate, under the terms and conditions of an advisory agreement (as amended from time to time, the “Advisory Agreement”). Our Advisor and its affiliates receive various forms of compensation, reimbursements and fees for services relating to the investment and management of our real estate assets.

We have invested in a diverse portfolio of real properties, debt related investments and real estate securities. We primarily seek to invest in real property consisting of office, industrial, retail, multifamily, hospitality and other properties, primarily located in North America. Additionally, we have invested in certain debt related investments, including originating and participating in mortgage loans secured by real estate, junior portions of first mortgages on commercial properties (“B-notes”), mezzanine debt and other related investments as well as real estate securities, including securities issued by other real estate companies, commercial mortgage-backed securities (“CMBS”) and commercial real estate collateralized debt obligations (“CRE-CDOs”).

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Interim Financial Statements

The accompanying condensed consolidated financial statements (herein referred to as “financial statements”) have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) and with the Securities and Exchange Commission’s (the “Commission”) instructions to Form 10-Q and Rule 10-01 of Regulation S-X for interim financial statements. Accordingly, these statements do not include all the information and footnotes required by GAAP for complete financial statements. In the opinion of management, the accompanying financial statements include all adjustments, consisting only of normal recurring items necessary for their fair presentation in conformity with GAAP. Interim results are not necessarily indicative of results for a full year. The information included in this Quarterly Report on Form 10-Q should be read in conjunction with our audited financial statements as of December 31, 2009 and related notes thereto, included in our Annual Report on Form 10-K filed with the Commission on March 23, 2010.

Principles of Consolidation

Due to our control of our Operating Partnership through our sole general partnership interest and the limited rights of the limited partners, we consolidate our Operating Partnership and limited partner interests not held by us, which are reflected as noncontrolling interests in the accompanying financial statements. All significant intercompany accounts and transactions have been eliminated in consolidation.

Our financial statements also include the accounts of our consolidated subsidiaries and joint ventures through which we are the primary beneficiary, when such subsidiaries and joint ventures are variable interest entities, or through which we have a controlling interest. In determining whether we have a controlling interest in a joint venture and the requirement to consolidate the accounts of that entity, we consider factors such as ownership interest, board representation, management representation, authority to make decisions, and contractual and substantive participating rights of the partners/members as well as whether the entity is a variable interest entity in which we have the power to direct the activities that most significantly impact the entity’s economic performance and the obligation to absorb losses of the entity that could potentially be significant to the entity or the right to receive benefits from the entity that could potentially be significant to the entity.

 

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Judgments made by us with respect to our level of influence or control of an entity and whether we are the primary beneficiary of a variable interest entity involve consideration of various factors, including the form of our ownership interest, the size of our investment (including loans) and our ability to direct the activities of the entity. Our ability to correctly assess our influence or control over an entity affects the presentation of these investments in our financial statements and, consequently, our financial position and specific items in our results of operations that are used by our stockholders, lenders and others in their evaluation of us. As of June 30, 2010 and December 31, 2009, we consolidated approximately $799.2 million and $800.4 million, respectively, in real property investments, before accumulated depreciation and amortization of approximately $107.0 million and $92.5 million, respectively, and approximately $492.2 million and $496.2 million, respectively, in mortgage note borrowings associated with our consolidated variable interest entities. The maximum risk of loss related to our investment in these unconsolidated variable interest entities is limited to our recorded net investments in such entities. The creditors of the consolidated variable interest entities do not have recourse to our general credit.

Generally, we consolidate real estate partnerships and other entities that are not variable interest entities when we own, directly or indirectly, a majority voting interest in the entity.

Reclassifications

Certain items in the financial statements corresponding to prior periods have been reclassified to conform to the current period presentation.

Concentration of Credit Risk and Other Risks and Uncertainties

All of our investments are subject to the various risks inherent in the current economic environment but certain of our investments, particularly our real estate securities and debt related investments, have been significantly impacted by the current economic environment. Over the past few years, the economic environment and credit market conditions have also impacted the performance and value of our debt related investments, specifically, those investments made prior to or during the recession. As of June 30, 2010, we recognized provision for loan losses on two of our debt related investments due to our determination that the collectability of future cash flows from those debt related investments was highly uncertain and that our collateral position had no value. If the current economic environment were to persist or worsen in the markets where the properties securing our debt related investments are located, our debt related investments may become further impaired as a result. Continued volatility in the fair value and operating performance of commercial real estate has made estimating cash flows from our debt related investments increasingly difficult, since such estimates are dependent upon our judgment regarding numerous factors, including, but not limited to, current and potential future refinancing availability, fluctuations in regional or local real estate values and fluctuations in regional or local rental or occupancy rates, real estate tax rates and other operating expenses.

New Accounting Pronouncements

We adopted a new accounting standard effective January 1, 2010 that revised the guidance on how a reporting entity evaluates whether an entity is a variable interest entity and which entity is considered the primary beneficiary of a variable interest entity and is, therefore, required to consolidate such variable interest entity. This accounting standard requires assessments at each reporting period of which party within the variable interest entity is considered the primary beneficiary and requires a number of new disclosures related to variable interest entities. Upon our adoption of this accounting standard, we reconsidered our previous consolidation conclusions for all entities with which we are involved pursuant to this accounting pronouncement. There was no impact to our financial position or results of operations as a result of our adoption of this accounting standard.

 

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3. INVESTMENTS IN REAL PROPERTY

Our consolidated investments in real property consist of investments in office, industrial and retail properties. The following tables summarize our consolidated investments in real property as of June 30, 2010 and December 31, 2009 (amounts in thousands).

 

Real Property

   Land    Building and
Improvements
    Intangible
Lease
Assets
    Gross
Investment
Amount
    Intangible
Lease
Liabilities
    Total
Investment
Amount
 

As of June 30, 2010:

             

Office

   $ 286,324    $ 979,499      $ 449,038      $ 1,714,861      $ (65,446   $ 1,649,415   

Industrial properties

     71,816      479,230        109,122        660,168        (9,512     650,656   

Retail properties

     218,514      419,091        75,054        712,659        (47,153     665,506   
                                               

Total gross book value

     576,654      1,877,820        633,214        3,087,688        (122,111     2,965,577   

Accumulated depreciation/amortization

     —        (83,984     (94,191     (178,175     14,624      $ (163,551
                                               

Total net book value

   $ 576,654    $ 1,793,836      $ 539,023      $ 2,909,513      $ (107,487   $ 2,802,026   
                                               

As of December 31, 2009:

             

Office

   $ 127,486    $ 354,467      $ 116,225      $ 598,178      $ (10,879   $ 587,299   

Industrial properties

     50,140      285,511        36,408        372,059        (8,950     363,109   

Retail properties

     220,313      419,952        75,070        715,335        (47,208     668,127   
                                               

Total gross book value

     397,939      1,059,930        227,703        1,685,572        (67,037     1,618,535   

Accumulated depreciation/amortization

     —        (68,307     (77,857     (146,164     12,058        (134,106
                                               

Total net book value

   $ 397,939    $ 991,623      $ 149,846      $ 1,539,408      $ (54,979   $ 1,484,429   
                                               

National Office and Industrial Portfolio Acquisition

On June 25, 2010, through various wholly-owned subsidiaries, we completed the acquisition of a 100% equity interest in a portfolio of 32 office and industrial properties (the “National Office and Industrial Portfolio” or the “NOIP Portfolio”) from several subsidiaries of iStar Financial Inc. (the “Sellers”). The aggregate purchase price of the NOIP Portfolio was approximately $1.35 billion, adjusted for closing costs and customary prorations of taxes, operating expenses, leasing costs and other items.

The following table summarizes properties, or interests therein, included in the NOIP Portfolio by geographic market and property type (dollar and square footage amounts in thousands).

 

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Market

   No. of
Properties
   Net Rentable
Square Footage
   Gross Investment
Amount(1)

Office Properties:

        

Northern New Jersey

   2    807    $ 249,891

Washington, DC

   2    753      210,131

Los Angeles, CA

   4    557      153,469

East Bay, CA

   2    465      152,305

Silicon Valley, CA

   3    654      137,700

Dallas, TX

   3    477      69,832

Denver, CO

   2    395      61,142

Miami, FL

   1    240      48,486

New England

   1    132      19,247

Chicago, IL

   1    100      13,539
                

Total Office Properties

   21    4,580      1,115,742

Industrial Properties:

        

Chicago, IL

   2    1,581      56,277

Atlanta, GA

   2    1,281      44,611

Houston, TX

   1    465      41,625

Central Pennsylvania

   1    1,004      41,114

Dallas, TX

   1    766      27,640

Central Kentucky

   1    727      26,000

Columbus, OH

   1    643      23,667

Cleveland, OH

   1    188      20,000

Denver, CO

   1    85      6,275
                

Total Industrial Properties

   11    6,740      287,209

Grand Total

   32    11,320    $ 1,402,950
                

 

 

 

(1) Gross investment exceeds the purchase price of the NOIP Portfolio due to our allocation of purchase price to intangible lease liabilities and other liabilities acquired as part of the acquisition of the NOIP Portfolio. Specifically, we made a provisional allocation of approximately $55.2 million of the purchase price to intangible lease liabilities, which are not reflected in this table.

Upon acquisition of the NOIP Portfolio, the purchase price of the acquisition is allocated to the properties based on their fair value. The total purchase price of a property is then allocated to land, building, tenant improvements and intangible lease assets and liabilities. The allocation of the total purchase price to land and building is based on our estimate of the property’s as-if vacant fair value. The as-if vacant fair value is calculated by using all available information such as the replacement cost of such asset, appraisals, property condition reports, market data and other related information. The allocation of the total purchase price of a property to an intangible lease asset includes the value associated with the in-place leases, which may include lost rent, leasing commissions, legal and other costs. We record acquired “above-market” and “below-market” leases at their fair value equal to the difference between the contractual amounts to be paid pursuant to each in-place lease and our estimate of fair market lease rates for each corresponding in-place lease, measured over a period equal to the remaining term of the lease for above-market leases and the remaining term of the lease plus the term of any below-market fixed-rate renewal option periods for below-market leases.

As of June 30, 2010, we have made a preliminary allocation of the purchase price of the NOIP Portfolio to land, building, tenant improvements and intangible lease assets and liabilities. The fair value of the acquired assets is provisional pending receipt of the final valuation for those assets. Based on this provisional allocation of the purchase price of the NOIP Portfolio, we attributed approximately $180.5 million to land, approximately $816.5 million to building and improvements, approximately $406.0 million to intangible lease assets and approximately $55.2 million to intangible lease liabilities.

We acquired the NOIP Portfolio using cash on hand and through the incurrence of debt obligations of approximately $858.6 million. For a detailed discussion of these debt obligations see Note 6 to these financial statements. In connection with the acquisition of the NOIP Portfolio, we incurred acquisition costs of approximately $19.1 million, which included an acquisition fee paid to our Advisor of approximately $13.5 million. In addition, we incurred deferred financing costs associated with the debt obligations used to partially finance our acquisition of the NOIP Portfolio of approximately $12.3 million.

Future Minimum Rentals

Future minimum rentals to be received under non-cancelable operating and ground leases from our real properties including the NOIP Portfolio in effect as of June 30, 2010 are as follows (amounts in thousands).

 

For years ended December 31,

   Future Minimum
Rentals

2010 (1)

   $ 173,451

2011

     222,701

2012

     215,894

2013

     200,418

2014

     183,501

Thereafter

     765,969
      

Total

   $ 1,761,934
      

 

(1) Amount is for the year ended December 31, 2010 and as such, includes rental revenues that would have been received as of June 30, 2010, as well as rental payments we expect will be received under non-cancellable operating and ground leases.

The table above does not reflect future rental revenues from the potential renewal or replacement of existing and future leases, excludes property operating expense reimbursements and assumes no early termination of leases.

 

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Pro Forma Financial Information

The following table has been prepared to provide estimated pro forma information for the three and six month periods ended June 30, 2010 and 2009 with regards to our acquisition of the NOIP Portfolio and the related financing. This pro forma information includes the amounts included in revenues and net income since our acquisition of the NOIP Portfolio on June 25, 2010 and our estimate of the pro forma impact that the acquisition of each respective property would have had on our revenues and net loss had we acquired these properties (i) as of January 1, 2010 for the three and six months ended June 30, 2010, and (ii) January 1, 2009 for the three and six months ended June 30, 2009. These estimated results of operations of the NOIP Portfolio are preliminary estimates and not necessarily reflective of the audited financial statements and pro formas that we will file under item 9.01 on Form 8-K in compliance with Rule 3-14 of the Commission.

This pro forma information may not be indicative of the results that actually would have occurred if these transactions had been made as of January 1, 2010 or 2009, nor does it purport to represent the results of operation for future periods. The accompanying pro forma information does not contemplate certain amounts that are not readily determinable, such as additional general and administrative expenses and other related items (amounts in thousands).

 

     For the Three Months Ended June 30,     For the Six Months Ended June 30,  
     2010    2009     2010    2009  
     Revenue
(1)
   Net Income    Revenue
(1)
   Net Loss     Revenue
(1)
   Net Income    Revenue
(1)
   Net Loss  

Actual historical operating results (2)

   $ 45,622    $ 7,775    $ 39,962    $ (19,223   $ 89,934    $ 941    $ 79,510    $ (19,751

Supplemental pro forma adjustment for 2010 property acquisitions (3)

     29,756      11,961      31,767      (6,960     59,512      4,842      61,523      (14,079

Pro forma operating results

   $ 75,378    $ 19,736    $ 71,729    $ (26,183 )     $ 149,446    $ 5,783    $ 141,033    $ (33,830 )  
                                                          

 

(1) Historical revenue includes debt related income, including equity in earnings from of our unconsolidated joint venture and securities income.
(2) Amounts included in our actual historical operating results include $2.0 million of total revenue and a loss of approximately $18.9 million that were attributable to the NOIP Portfolio acquisition for the three and six months ended June 30, 2010.
(3) Supplemental pro forma adjustment includes our estimate of incremental rental revenue, rental expense, depreciation and amortization expense, asset management fees, acquisition-related expenses, net of other gains and interest expense that we may have incurred had the NOIP Portfolio acquisition been made on January 1, 2010, for the three and six months ended June 30, 2010, and January 1, 2009, for the three and six months ended June 30, 2009. As part of this consideration, acquisition-related expenses, net of other gains of approximately $19.1 million have been added back to our 2010 pro forma adjustment. Pro forma adjustments for 2010 acquisitions include depreciation expense of approximately $19.0 million for three months ended June 30, 2010 and 2009 and approximately $38.0 million for the six months ended June 30, 2010 and 2009.

Rental Revenue

The following table summarizes the adjustments to rental revenue related to the amortization of above-market lease assets and, below-market lease liabilities and for straight-line rental adjustments for the three and six months ended June 30, 2010 and 2009 (amounts in thousands).

 

     For the Three Months Ended June 30,     For the Six Months Ended June 30,  
     2010     2009     2010     2009  

Straight-line rent adjustments

   $ 1,119      $ 1,195      $ 2,148      $ 2,079   

Above-market lease amortization

     (724     (816     (1,462     (1,490

Below-market lease amortization

     1,323        1,450        2,642        2,813   
                                

Total amortization

   $ 1,718      $ 1,829      $ 3,328      $ 3,402   
                                

Tenant recovery income includes payments from tenants for real estate taxes, insurance and other property operating expenses and is recognized as rental revenue. Tenant recovery income recognized as rental revenue for the three and six months ended June 30, 2010 was approximately $7.4 million and $14.6 million, respectively. For the same period ended June 30, 2009, tenant recovery income recognized was approximately $7.3 million and $14.3 million, respectively.

 

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4. INVESTMENT IN REAL ESTATE SECURITIES

As of June 30, 2010, the weighted average term remaining until expected maturity of our CMBS and CRE-CDO investments, based on amounts invested, was approximately 4.6 years. As of June 30, 2010, the weighted average publicly available rating of our CMBS and CRE-CDO securities, as provided by Standard and Poor’s, were approximately B- and CCC-, respectively. Our preferred equity securities are perpetual in nature and therefore do not have expected maturity dates and approximately 77% of our preferred equity securities, based on amount invested, do not have credit ratings. The following table describes our investments in real estate securities as of June 30, 2010 and December 31, 2009 (dollar amounts in thousands).

 

     Preferred
Equity
    CRE-CDOs     CMBS     Total  

As of June 30, 2010:

        

Amount invested, net of principal repayments

   $ 102,725      $ 139,818      $ 4,019      $ 246,562   

Other-than-temporary impairment

     (69,694     (137,544     (4,014     (211,252

Reclassification of retained earnings to other comprehensive income

     —          3,836        127        3,963   

Proceeds from disposition of securities

     (58,372     —          —          (58,372

Realized gain on disposition of securities

     32,272        —          —          32,272   

Net amortization/accretion of discounts and premiums

     —          (2,817     (132     (2,949
                                

Amortized cost

     6,931        3,293        —          10,224   

Unrealized gains (losses), net

     7,276        (2,303     —          4,973   
                                

Fair value as of June 30, 2010

   $ 14,207      $ 990      $ —        $ 15,197   
                                

As of December 31, 2009:

        

Amount invested, net of principal repayments

   $ 102,725      $ 139,818      $ 4,019      $ 246,562   

Other-than-temporary impairment

     (69,694     (132,305     (3,866     (205,865

Reclassification of retained earnings to other comprehensive income

     —          3,836        127        3,963   

Net amortization/accretion of discounts and premiums

     —          (1,402     (14     (1,416
                                

Amortized cost

     33,031        9,947        266        43,244   

Unrealized gains (losses), net

     30,863        (1,472     51        29,442   
                                

Fair value

   $ 63,894      $ 8,475      $ 317      $ 72,686   
                                

Unrealized Losses

As of June 30, 2010 and December 31, 2009, one and seven of our real estate securities, respectively, had fair values below their respective amortized costs. As of June 30, 2010, one of our CRE-CDO securities had an unrealized loss of approximately $2.3 million and had been in an unrealized loss position for over 12 months. As of December 31, 2009, five of our CMBS and CRE-CDO securities had unrealized losses of approximately $2.7 million, all of which had been in unrealized loss positions for more than 12 months. In addition, two of our preferred equity securities had unrealized losses of approximately $131,000 as of December 31, 2009, both of which had been in unrealized loss positions for less than 12 months.

Based upon our intent and ability to hold this real estate security for a period of time sufficient to allow for a forecasted recovery of fair value, the continued performance of the issuer or the underlying collateral, and our assessment, based on all available information considered, that the underlying cash flows will continue to perform in the future, the gross unrealized loss of approximately $2.3 million is considered to be temporary as of June 30, 2010, and, as a result, no additional impairment losses have been recognized.

Other-than-Temporary Impairment

During the three months ended June 30, 2010 and 2009, we recorded a net loss of approximately $3.7 million and $6.7 million, respectively, related to other-than-temporary impairment of our real estate securities. During the six months ended June 30, 2010 and 2009, we recorded approximately $5.4 million and $6.7 million, respectively, related to other-than-temporary impairment of our real estate securities. Due to volatility with the credit market and its unpredictable impact for such securities, we determined that we cannot reliably predict the timing and amount of cash flows that we expect to receive related to the majority of our CMBS and CRE-CDO securities. Therefore, we account for such securities under the cost recovery method of accounting. The application of the cost recovery method of accounting requires that we cease to recognize interest income related to these securities until the amortized cost of each respective security is depleted or until we can reliably estimate cash flows, which will result in diminished securities income in the near term. Once the amortized cost of each security is depleted or we can reasonably estimate cash flows, cash payments will be recorded to interest income, which will result in increased securities income in future periods. Under the cost recovery method of accounting, if the fair value of a security falls below the amortized cost of that security and we do not anticipate that the receipt of near term cash flows will sufficiently reduce the security’s amortized cost below its fair value, then we recognize an other-than-temporary impairment in an amount equal to the difference between that security’s fair value and its amortized cost.

 

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Credit Losses

As of June 30, 2010, we held one CRE-CDO security that was in an unrealized loss position. Since we do not intend to sell this security and it is not more likely than not that we will be required to sell it before recovery, other-than-temporary impairment write-downs related to this security have been separated into an amount representing the credit loss, which is recognized in earnings, and the amount related to all other factors, which is recognized in other comprehensive income (loss).

A credit loss represents the difference between the present value of expected future cash flows and the amortized cost basis of a debt security. As of June 30, 2010, we had recognized approximately $137.6 million in other-than-temporary impairment related to our investments in debt securities. On April 1, 2009, for certain securities, we reclassified approximately $4.0 million in noncredit related other-than-temporary impairment from distributions in excess of earnings to accumulated other comprehensive income (loss).The following table presents a rollforward of the credit loss component of the amortized cost of debt securities for the six months ended June 30, 2010 (amounts in thousands).

 

     For the Six Months Ended June 30,
     CRE-CDOs    CMBS    Total

Credit loss at beginning of period

   $ 128,469    $ 3,739    $ 132,208

Other-than-temporary impairment during period

     5,239      148      5,387
                    

Balance as of June 30, 2010

   $ 133,708    $ 3,887    $ 137,595
                    

Disposition of Preferred Equity Securities

During the three months ended June 30, 2010, we received proceeds of approximately $58.4 million on the disposition of certain preferred equity securities positions. After cumulative other-than-temporary impairment charges of $52.6 million, the adjusted basis of the securities sold was approximately $26.1 million, resulting in a net gain from the disposition of these preferred equity securities of approximately $32.3 million for the three and six months ended June 30, 2010. Before cumulative other-than-temporary impairment charges, the amount invested in the securities sold during the three months ended June 30, 2010 was approximately $78.7 million, resulting in an estimated economic loss of approximately $20.3 million. We did not dispose of any securities during the three and six months ended June 30, 2009.

 

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5. DEBT RELATED INVESTMENTS

As of June 30, 2010, we had approximately $151.0 million, net of loan loss reserves of $20.3 million, in debt related investments. The following table describes our debt related investments as of June 30, 2010 and December 31, 2009 (dollar amounts in thousands).

 

       Number of Investments as    Net Investment (1) as of    Weighted
Average
Maturity in
Years (2)

Investment Type

   June 30,
2010
   December 31,
2009
   June 30,
2010
   December 31,
2009
  

Mortgage notes

   3    2    $ 82,128    $ 68,634    2.3

B-notes

   4    4      48,950      51,932    2.5

Mezzanine debt

   2    2      19,949      19,946    4.4
                            

Subtotal

   9    8      151,027      140,512    2.8
                            

Unconsolidated joint venture (3)

   0    1      —        17,386    N/A
                            

Total

   9    9    $  151,027    $  157,898    2.8
                            

 

(1) Amount presented is net of accumulated accretion, amortization of discounts and premiums and allowances for loss on our debt related investments.
(2) As of June 30, 2010 and weighted by relative investment amounts.
(3) As of December 31, 2009, one of our debt related investments was accounted for as an unconsolidated joint venture using the equity method per guidance established pursuant to Accounting Standards Codification (“ASC”) Topic 323, Investments: Equity Method and Joint Ventures . We included this equity method investment in our debt related investments operating segment as the terms of our investment are similar to our other debt related investments. This equity method investment was repaid in full as of June 30, 2010.

The following table describes our debt related income, including equity in earnings of an unconsolidated joint venture, for the three months ended June 30, 2010 and 2009 (dollar amounts in thousands).

 

     For the Three Months Ended
June 30,
   For the Six Months Ended
June 30,
   Weighted Average Yield
as of

June 30, 2010 (1)
 

Investment Type

   2010    2009    2010    2009   

Mortgage notes

   $  2,111    $ —      $  4,002    $ —      10.4

B-notes

     970      804      1,927      1,561    6.9

Mezzanine debt

     617      907      1,210      1,811    5.7
                                  

Subtotal

     3,698      1,711      7,139      3,372    8.3

Unconsolidated joint venture

     396      551      941      1,096    0.0
                                  

Total

   $ 4,094    $  2,262    $ 8,080    $  4,468    8.3
                                  

 

(1) Weighted average yield is calculated on an unlevered basis using the amount invested, current interest rates and accretion of premiums or discounts realized upon the initial investment for each investment type as of June 30, 2010. Yields for LIBOR-based, floating-rate investments have been calculated using the one-month LIBOR rate as of June 30, 2010 for purposes of this table. We have assumed a yield of zero on debt related investments for which we have recognized a full allowance for loss as of June 30, 2010.

Debt Related Investment Activity

Dulles Creek Loan Investment

During the six months ended June 30, 2010, we originated a $13.3 million senior mortgage loan secured by an office property located in Washington, DC market (the “Dulles Creek Loan”). The borrower under the Dulles Creek Loan is Brickman Dulles Creek LLC., an affiliate of New York, New York-based Brickman, a private equity real estate sponsor. The Dulles Creek Loan has a term of three years and earns interest at a stated rate of 7.1%. We earned an origination fee of approximately $132,000 upon the origination of the Dulles Creek Loan. In connection with our origination of the Dulles Creek Loan, we paid our Advisor an acquisition fee of approximately $458,000. We originated the Dulles Creek Loan using cash on hand.

Liberty Avenue Debt Investment Repayment

During the six months ended June 30, 2010, we received full repayment of an indirect interest in a debt investment, which was structured as a redeemable preferred equity investment (the “Liberty Avenue Debt Investment”) and recorded as an investment in unconsolidated joint venture on the condensed consolidated balance sheet. The repayment of the Liberty Avenue Debt Investment resulted in a net decrease in our investment in unconsolidated joint venture for the six months ended June 30, 2010 of approximately $17.4 million. The repayment of the Liberty Avenue Debt Investment was comprised of a principal repayment of $17.0 million plus an exit fee of approximately $170,000 and the payment of accrued interest of approximately $242,000. This investment was included on our balance sheet as an investment in an unconsolidated joint venture as of December 31, 2009.

 

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Impairment

During 2006, we acquired a debt related investment secured by an office property located in the San Diego, California market (“Seville Plaza”). During the six months ended June 30, 2010, we recognized approximately $3.0 million in a provision for loss related to this debt related investment in the accompanying statements of operations. This provision was entirely related to Seville Plaza and resulted from our assessment that future cash flows from this investment were highly uncertain and that our collateral position had no value. This represents a total provision for the entire carrying amount of this investment as of June 30, 2010. There were no provision losses recognized for our debt related investments during the three and six months ended June 30, 2009.

6. DEBT OBLIGATIONS

The following table describes our debt obligations as of June 30, 2010 and December 31, 2009 (dollar amounts in thousands).

 

     Weighted Average  Stated
Interest Rate as of
    Outstanding Balance as of (1)    Gross Investment Amount
Securing Borrowings as of
     June 30,
2010
    December 31,
2009
    June 30,
2010
   December 31,
2009
   June 30,
2010
   December 31,
2009

Fixed rate mortgages

   6.1   6.0   $ 1,213,377    $ 764,967    $ 2,037,805    $ 1,322,177

Floating rate mortgages (2)

   3.7   2.0     552,195      62,647      957,809      86,316
                                       

Sub-total

   5.3   5.7     1,765,572      827,614      2,995,614      1,408,493

Repurchase facility

   3.7   N/A        61,478      —        82,127      N/A

Other secured borrowings

   N/A      1.4     —        13,352      N/A      63,894
                                       

Sub-total

   3.7   1.4     61,478      13,352      82,127      63,894
                                       

Total

   5.3   5.6   $ 1,827,050    $ 840,966    $ 3,077,741    $ 1,472,387
                                       

 

(1) Amounts presented are net of unamortized discounts to the face value of our outstanding fixed-rate mortgages of $5.7 million and $6.2 million as of June 30, 2010 and December 31, 2009, respectively.
(2) As of both June 30, 2010 and December 31, 2009, floating-rate mortgage notes were subject to interest rates at spreads of 1.40% to 3.50% over one-month LIBOR.

As of June 30, 2010, 20 mortgage notes were interest only and 24 mortgage notes were fully amortizing with outstanding principal balances of approximately $1.1 billion and $692.3 million, respectively. Six of our mortgage notes with an aggregate outstanding principal balance as of June 30, 2010 of approximately $87.5 million have initial maturities before June 30, 2012. As of June 30, 2010, we were in compliance with all financial covenants.

Borrowing Activity

During the six months ended June 30, 2010, we incurred significant additional borrowings in connection with our acquisition of the NOIP Portfolio. We also incurred additional debt secured by certain of our previously unencumbered real properties and entered into a repurchase facility. The following tables summarizes certain critical terms related to this borrowing activity for the six months ended June 30, 2010 (dollar amounts in thousands).

 

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Borrowing

  

Lender

   Loan Amount   

Amortizing /
Interest Only

  

Fixed /
Floating Rate

   Stated Interest
Rate (1)
    Maturity Date

Senior Mortgage Fixed Rate Financing:

                

Harborside

   NY Life    $ 125,000    Amortizing    Fixed Rate    5.50   December 2016

NOIP Fixed Rate Loan

  

Wells Fargo Bank /

Bank of America

     185,000    Amortizing    Fixed Rate    5.46   July 2020

Campus Road Office Center

   NY Life      35,000    Amortizing    Fixed Rate    4.75   July 2015
                        

Subtotal/Weighted Average

        345,000          5.40  

Senior Mortgage Floating Rate Financing:

                

NOIP Floating Rate Loan

   Wells Fargo      443,030    Interest Only    Floating    4.50   July 2012

New England Retail Portfolio Loan

   Wells Fargo      49,700    Interest Only    Floating    4.45   July 2012
                        

Subtotal/Weighted Average

        492,730          4.49  

Mezzanine Loan Financing:

                

Tranche 1

   iStar Financial      27,000    Amortizing    Fixed Rate    5.46   June 2015

Tranche 2

   iStar Financial      12,438    Interest Only    Fixed Rate    10.00   June 2013

Tranche 3

   iStar Financial      66,157    Interest Only    Fixed Rate    10.00   June 2013
                        

Subtotal/Weighted Average

        105,595          8.84  

Other Secured Borrowings:

                

Repurchase Facility

   Wells Fargo      61,500    Amortizing    Floating    3.69   June 2013

Total Borrowing Activity

      $ 1,004,825          5.21  
                        

 

(1) The stated interest rate for floating rate borrowings is based upon the applicable LIBOR rate as of June 30, 2010.

The following discussion provides further detail of the borrowings summarized in the above table. Certain of these borrowings include restrictions, covenants, customary market carve-outs and/or guarantees by us. Certain financial covenants referenced below include tests of our general liquidity and debt servicing capability as well as certain collateral specific performance and valuation ratios. Specifically, we are required by certain of our borrowing arrangements to maintain the following financial covenants: (i) an interest coverage ratio of 1.75 to 1.00 or higher, (ii) a fixed charge coverage ratio of 1.50 to 1.00 or higher, (iii) a leverage ratio not to exceed 75%, (iv) a minimum liquidity of $10.0 million and (v) a minimum tangible net worth of $750.0 million. As of June 30, 2010, we were in compliance with all of these financial covenants.

Certain of the borrowings summarized in the above table are subject to customary market carve-outs, which may result in loans becoming recourse to us or our Operating Partnership. Such customary market carve-outs would trigger these recourse provisions generally as a result of actions on our part that would constitute “bad acts” such as fraud, voluntary bankruptcy and/or gross negligence. Certain of the borrowings include limited recourse to us and/or guarantees by us. Such recourse and/or guarantees are limited in nature and should not, in any case, exceed the amount of the outstanding principal borrowings plus any accrued interest payable to the lender and cost related to an event of a default by us.

Harborside and NOIP Fixed Rate Loan

On June 25, 2010, we entered into two senior mortgage fixed rate amortizing loans to partially finance our acquisition of the National Office and Industrial Portfolio for which we received loan proceeds of $125.0 million from New York Life Insurance Company (the “Harborside Loan”) and $185.0 million from Wells Fargo Bank, National Association and Bank of America, National Association (the “NOIP Fixed Rate Loan”). The Harborside Loan is secured by one office property included in the National Office and Industrial Portfolio located in the Northern New Jersey market. The Harborside Loan matures in December 2016, includes two one-year extension options, subject to certain provisions and bears interest at 5.50% during the initial term. The Harborside Loan is nonrecourse to us during the initial term of the loan, subject to customary market carve-outs. However, the Harborside Loan may have limited recourse to us during the extension periods subject to certain provisions. The NOIP Fixed Rate Loan is secured by 14 office and industrial properties included in the National Office and Industrial Portfolio and matures in July 2020. The NOIP Fixed Rate Loan bears interest at approximately 5.46% and is nonrecourse to us and our Operating Partnership, subject to customary market carve-outs. The Harborside Loan and the NOIP Fixed Rate Loan both contain certain restrictions and covenants that are customary for loans of this nature, including certain restrictions regarding change in control of the underlying collateral and/or borrowers and certain financial covenants with which we and/or the underlying borrowing entities must comply.

Campus Road Office Center Loan

On June 11, 2010, we entered into a financing agreement with New York Life Insurance Company that is secured by one previously unencumbered office property located in the Princeton, New Jersey market (the “Campus Road Office Center”) for which we received loan proceeds of $35.0 million. This financing consisted of a fixed rate mortgage note that bears interest at 4.75% that is interest only for the first two years and then converts to an amortizing loan. This loan has a contractual maturity in May 2023; however, the expected maturity date of this loan, based on the loan’s underlying structure, is July 2015. This loan is nonrecourse to us and our Operating Partnership, subject to customary market carve-outs. This loan contains restrictions and covenants that are customary for loans of this nature, including certain restrictions regarding change in control of the underlying collateral and/or borrower and certain covenants with which we and/or the underlying borrowing entities must comply.

NOIP Floating Rate Loan

On June 25, 2010, we entered into a senior floating rate loan (the “NOIP Floating Rate Loan”) with Wells Fargo Bank, National Association to partially finance our acquisition of the National Office and Industrial Portfolio. We received loan proceeds of approximately $443.0 million from the NOIP Floating Rate Loan. The NOIP Floating Rate Loan bears interest at 3.5% over the one month LIBOR rate, subject to a 1.00% LIBOR floor, resulting in an all-in rate as of June 30, 2010 of 4.50%. The NOIP Floating Rate Loan is secured by 17 office and industrial properties included in the National Office and Industrial Portfolio. The initial term of the NOIP Floating Rate Loan matures in July 2012 and includes three one-year extension options that are subject to certain provisions for which we must qualify. In addition to standard nonrecourse carve-outs, the NOIP Floating Rate Loan provides for limited recourse to our Operating Partnership. The NOIP Floating Rate Loan contains restrictions and covenants that include certain restrictions regarding change in control of the underlying collateral and/or borrower and certain financial covenants with which we and/or the underlying borrowing entities must comply. Such financial covenants include compliance requirements based upon measurement thresholds related to our net worth and debt service paying capacity.

 

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New England Retail Portfolio Debt Financing

On June 24, 2010, we entered into a financing agreement with Wells Fargo Bank, National Association that is secured by ten previously unencumbered retail real properties located in the New England market for which we received initial loan proceeds of $49.7 million. This financing consists of one interest only, floating rate mortgage note that bears interest at 3.45% over the one month LIBOR rate, subject to a 1.00% LIBOR floor, resulting in an all-in rate as of June 30, 2010 of 4.45%. This loan matures in July 2012 and includes three one-year extension options that are subject to certain provisions for which we must qualify. This loan is nonrecourse to us or our Operating Partnership, subject to customary market carve-outs. This loan contains restrictions and covenants that are customary for loans of this nature, including certain restrictions regarding change in control of the underlying collateral and/or borrower and certain financial covenants with which we and/or the underlying borrowing entities must comply.

Mezzanine Loan Financing

On June 25, 2010, we entered into two mezzanine loans with the Sellers (collectively referred to as the “Mezzanine Loans”) to partially finance our acquisition of the NOIP Portfolio. The Mezzanine Loans totaled approximately $105.6 million and are secured by our equity interests in 31 of the 32 properties included in the NOIP Portfolio. The Mezzanine Loans include (i) a tranche for an amount of $27.0 million that bears interest at approximately 5.46%, requires monthly amortization payments (based upon a 30-year amortization schedule) and matures in June 2020, (ii) a second, interest only, tranche for an amount of approximately $12.4 million that bears interest at a rate of 10.00% for the first 3 years, 12.00% for the 4th through the 7th year, and 13.00% thereafter, and matures in June 2020 and (iii) a third, interest only, tranche for an amount of approximately $66.2 million that bears interest at 10.00% and matures in June 2013. We anticipate that the effective maturity dates for the above tranches will be June 2015, June 2013 and June 2013, respectively, due to the Sellers ability to put the mezzanine loans to us at their option on those dates. The Mezzanine Loans, through the Sellers’ rights to exercise their put option, are enforceable against our Operating Partnership. The Mezzanine Loans contain restrictions and covenants that are customary for loans of this nature, including certain restrictions regarding change in control of the underlying collateral and/or borrower.

Repurchase Facility

On June 25, 2010, a wholly-owned subsidiary of ours (the “Repo Seller”), entered into a master repurchase and securities contract (the “Repo Facility”) with Wells Fargo Bank, National Association (the “Buyer”). Under the Repo Facility, from time to time during the period ending June 24, 2011, the parties thereto may enter into transactions in which Repo Seller and Buyer agree to transfer from Repo Seller to Buyer all of its rights, title and interest to certain senior mortgage loans and other assets (the “Assets”) against the transfer of funds by Buyer to Repo Seller, with a simultaneous agreement by Buyer to transfer back to Repo Seller such Assets at a date certain or on demand, against the transfer of funds from Repo Seller to Buyer. Each such transaction is referred to as a “Transaction.” The maximum amount of the Repo Facility is $100.0 million. The maturity date of the Repo Facility is June 2013 unless it is extended pursuant to the two one-year extensions available to the Repo Seller.

Pursuant to the Repo Facility, Repo Seller shall pay Buyer an ongoing price differential, which is based upon the purchase price paid by Buyer to Repo Seller in a given Transaction, at a pricing rate equal to LIBOR plus the applicable spread. The applicable spread will vary per Transaction depending upon the particular Asset transferred from the Repo Seller to the Buyer and the purchase price paid by the Buyer to Repo Seller in exchange for that Asset upon closing of the relevant Transaction.

Pursuant to a guarantee agreement dated as of June 25, 2010 (the “Guarantee Agreement”) among us and our Operating Partnership (each a “Guarantor” and collectively the “Guarantors”), and the Buyer, the Guarantors have unconditionally and irrevocably guaranteed to Buyer the punctual payment and performance when due, whether at stated maturity, acceleration or otherwise, of all of the following: (a) all payment obligations owing by Repo Seller to Buyer under or in connection with the Repo Facility and any other governing agreements and any and all extensions, renewals, modifications, amendments or substitutions of the forgoing; (b) all expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are incurred by Buyer in the enforcement of any of the foregoing or any obligation of the Guarantors; and (c) any other obligations of Repo Sellers with respect to Buyer under each of the governing documents. Notwithstanding these guarantees, unless certain breaches occur, there is a cap that limits the amount we have guaranteed to pay based on the value of the Asset transferred.

The Repo Facility contains various customary representations and warranties, covenants, events of default and other customary provisions contained in repurchase agreements.

In connection with the Repo Seller’s entry into the Repo Facility, on June 25, 2010, Repo Seller transferred to Buyer three of our senior mortgage debt investments for proceeds of approximately $61.5 million under the Repo Facility, and the weighted average pricing rate associated with these Transactions was initially set at LIBOR plus 334 basis points, resulting in an all-in rate as of June 30, 2010 of 3.69%.

 

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This transaction is treated as a financing transaction, as we (the seller), can cause the buyer to return the assets sold at any time during the life of the Repo Facility.

The following table sets forth contractual scheduled maturities of our mortgage notes and related details, including mortgage notes that may be subject to certain extension options, as of June 30, 2010 (dollar amounts in thousands).

 

          As of June 30, 2010

Year Ending

December 31,

   Number of
Mortgage Notes
Maturing (1)
   Outstanding
Balance (2)
   Gross Investment Amount
of Properties Securing
Mortgage Notes Maturing
      2010 (3)    2    $ 6,521    $ 24,196
2011    3      59,641      73,796
2012    3      514,030      902,353
2013    2      78,595      —  
2014    3      93,496      156,411
2015    6      126,321      197,229
2016    13      316,012      581,527
2017    8      303,649      471,545
2018    0      —        —  
2019    0      —        —  
Thereafter    6      267,307      588,557
                  
Total    46    $ 1,765,572    $ 2,995,614

 

(1) Mortgage notes presented exclude other secured borrowings of approximately $61.5 million related to our master repurchase facility account, which matures in June 2013 and is subject to two one-year extensions.
(2) Of the outstanding principal balances of mortgage notes maturing in 2010 and 2011, approximately $46.5 million are subject to extensions options beyond December 31, 2011 and approximately $19.7 million of our mortgage notes have maturity dates that cannot be extended beyond December 31, 2011. Mortgage notes that are subject to extension options are also subject to certain lender covenants and restrictions that we must meet to extend the initial maturity date. We currently cannot assert with any degree of certainty that we will qualify for these extensions upon the initial maturity date of these mortgage notes.
(3) Amount represents the remainder of 2010.

7. HEDGING ACTIVITIES

Risk Management Objective of Using Derivatives

We maintain risk management control systems to monitor interest rate risk attributable to both our outstanding and forecasted debt obligations. We generally seek to limit the impact of interest rate changes on earnings and cash flows by selectively utilizing derivative instruments to hedge exposures to changes in interest rates on loans secured by our assets. While this hedging strategy is designed to minimize the impact on our net income (loss) and cash provided by operating activities from changes in interest rates, the overall returns on our investments may be reduced. Our board of directors has established policies and procedures regarding our use of derivative instruments for hedging or other purposes to achieve these risk management objectives.

Cash Flow Hedges of Interest Rate Risk

Our objectives in using interest rate derivatives are to add stability to interest expense and to manage our exposure to interest rate movements. To accomplish this objective, we primarily use interest rate swaps, caps and collars as part of our interest rate risk management strategy. Interest rate swaps designated as cash flow hedges involve the receipt of variable-rate amounts from a counterparty in exchange for us making fixed-rate payments over the life of the agreements without exchange of the underlying notional amount. Interest rate caps designated as cash flow hedges involve the receipt of variable-rate amounts from a counterparty if interest rates rise above the strike rate on the contract in exchange for an up-front premium payment. Interest rate collars designated as cash flow hedges involve the receipt of variable-rate amounts if interest rates rise above the cap strike rate on the contract and payments of variable-rate amounts if interest rates fall below the floor strike rate on the contract. In connection with the borrowing activity noted in Note 6, we entered into and plan to enter into certain interest rate derivatives with the goal of mitigating our exposure to fluctuations in interest rates subject to the one-month LIBOR rate.

The effective portion of changes in the fair value of derivatives designated and that qualify as cash flow hedges under Accounting Standards Codification Topic 815 (“ASC Topic 815”) is recorded in accumulated other comprehensive income (loss) and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings. During the next 12 months, we estimate that an additional approximately $2.6 million will be reclassified as an increase to interest expense related to previous hedges of fixed rate debt issuances. The term of these fixed rate debt issuances will mature during 2018 and 2019. The ineffective portion of the change in fair value of the derivatives is recognized directly in earnings. The table below presents a reconciliation of the beginning and ending balances of our accumulated other comprehensive loss related to the effective portion of our cash flow hedges as presented on our balance sheet (amounts in thousands).

 

     Accumulated Other
Comprehensive Income
 

Beginning balance as of December 31, 2009:

   $ (23,383

Amortization of interest expense

     1,377   

Change in fair value

     (115

Attribution of OCI to noncontrolling interests

     (48
        

Ending balance as of June 30, 2010:

   $ (22,169
        

Designated Hedges

As of June 30, 2010, we had two unsettled outstanding interest rate caps that were designated as cash flow hedges of interest rate risk, with a total notional amount of $96.2 million. As of December 31, 2009, we had one unsettled outstanding interest rate cap that was designated as a cash flow hedge of interest rate risk with a notional amount of $46.5 million, which matured in June 2010.

Undesignated Hedges

Derivatives not designated as hedges are not speculative and are used to hedge our exposure to interest rate movements and other identified risks but do not meet hedge accounting requirements. Changes in the fair value of derivatives not designated in hedging relationships are recorded directly in earnings and resulted in a loss of approximately $112,000 for both the three and six months ended June 30, 2010. As of June 30, 2010, we had one outstanding interest rate cap that was not designated as a hedge with a notional amount of approximately $336.0 million. This interest rate cap was recorded as an asset on balance sheet with a fair value of approximately $206,000. As of December 31, 2009, we had one outstanding interest rate collar that was not designated as a hedge with a notional amount of $9.7 million and a fair value of approximately $28,000 recorded as a liability. The collar matured during the three months ended March 31, 2010.

 

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Fair Values of Derivative Instruments

The table below presents the fair value of our derivative financial instruments as well as their classification on our accompanying balance sheet as of June 30, 2010 (amounts in thousands).

 

     Asset Derivatives    Liability Derivatives  
     Balance Sheet
Location
   As of June 30,
2010
Fair Value
   As of
December 31,
2009
Fair Value
   Balance Sheet
Location
   As of June 30,
2010
Fair Value
   As of
December 31,
2009
Fair Value
 

Derivatives designated as hedging instruments under ASC Topic 815 Interest rate contracts

   Other assets    $ 31    $ —      Other Liabilities    $ —      $ —     
                                   

Total derivatives designated as hedging instruments under ASC Topic 815

        31      —           —        —     

Derivatives not designated as hedging instruments under ASC Topic 815 Interest rate contracts

   Other assets      206      —      Other Liabilities      —        (28
                                   

Total derivatives not designated as hedging instruments under ASC Topic 815

        206      —           —        (28 )  

Total derivatives

      $ 237    $ —         $ —      $ (28
                                   

Effect of Derivative Instruments on the Statement of Operations

The table below presents the effect of our derivative financial instruments on our accompanying statements of operations for the three and six months ended June 30, 2010 and 2009 (amounts in thousands).

 

    For the Three Months
Ended June 30,
  For the Six Months
Ended June 30,
    2010   2009   2010   2009

Derivatives Destingated as Hedging Instruments

       

Derivative type

   
 
Interest rate
contracts
   
 
Interest rate
contracts
   
 
Interest rate
contracts
   
 
Interest rate
contracts

Amount of gain or (loss) recognized in OCI (effective portion)

  $ (115)   $ 3,525   $ (115)   $ 4,965

Location of gain or (loss) reclassified from accumulated OCI into income (effective portion)

   
 
Interest
expense
   
 
Interest
expense
   
 
Interest
expense
   
 
Interest
expense

Amount of gain or (loss) reclassified from accumulated OCI into income (effective portion)

  $ (695)   $ (665)   $ (1,377)   $ (980)

Location of gain or (loss) recognized in income (ineffective portion and amount excluded from effectiveness testing)

   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives

Amount of gain or (loss) recognized in income due to missed forecast (ineffective portion and amount excluded from effectiveness testing)

  $ —     $ (8,578)   $ —     $ (8,990)

Derivatives Not Destingated as Hedging Instruments

       

Derivative type

   
 
Interest rate
contracts
   
 
Interest rate
contracts
   
 
Interest rate
contracts
   
 
Interest rate
contracts

Location of gain or (loss) recognized in income

   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives
   
 
Gain (loss) on
derivatives

Amount of gain (loss) recognized in income

  $ (112)   $ (23)   $ (112)   $ 978

Credit Related Contingent Features

As of June 30, 2010, we did not have any derivatives that contained credit related contingent features that could result in a cash outlay due to collateral posting requirements of termination events.

 

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8. THE OPERATING PARTNERSHIP’S PRIVATE PLACEMENTS

Prior to December 31, 2009, our Operating Partnership offered undivided tenancy-in-common interests in real property and beneficial interests in Delaware Statutory Trusts that own real property (hereinafter referred to collectively as “fractional interests”) to accredited investors in private placements. In 2009, our Operating Partnership discontinued the private placements of fractional interests. The proceeds from the sale of these fractional interests are accounted for as financing obligations in the accompanying balance sheets pursuant to ASC Topic 840, Accounting for Leases . Our Operating Partnership has 100% leased the properties sold to investors, and in accordance with ASC Topic 840, rental payments made pursuant to such leases to investors are accounted for generally as interest expense using the interest method, whereby a portion is accounted for as interest expense and a portion is accounted for as an accretion or amortization of the outstanding principal balance of the financing obligations.

For the three and six months ended June 30, 2010, we incurred rent obligations of approximately $1.5 million and $3.1 million, respectively, under our lease agreements with the investors who had participated in our Operating Partnership’s private placements. During the same periods in 2009, we incurred rent obligations of approximately $1.6 million and $3.1 million, respectively, under our lease agreements with the investors who had participated in our Operating Partnership’s private placements. The various lease agreements in place as of June 30, 2010 contained expiration dates ranging from June 2019 to November 2037.

During the three months ended June 30, 2010, we exercised our option to acquire, at fair value, approximately $47.3 million of previously sold fractional interests in two retail properties for approximately 4.7 million OP Units issued at a price of $10.00 per OP Unit in accordance with the purchase option agreement. The result of this activity was a net decrease in our financing obligations of approximately $47.3 million for the six months ended June 30, 2010 and an increase in noncontrolling interest of approximately $43.3 million. This increase in noncontrolling interest was comprised of approximately $47.3 million in gross fractional interests acquired, less approximately $4.0 of unamortized upfront costs associated with these fractional interest that were previously accounted for as deferred loan costs.

9. FAIR VALUE DISCLOSURES

The table below presents certain of our significant assets measured at fair value on a recurring basis as of June 30, 2010 and December 31, 2009, aggregated by the level in the fair value hierarchy set forth by ASC Topic 820 within which those measurements fall (amounts in thousands).

 

     Level 1    Level 2    Level 3    Total

As of June 30, 2010:

           

Assets

           

Preferred equity

   $ 14,207    $ —      $ —      $ 14,207

CMBS and CRE-CDOs

     —        —        990      990
                           

Investment in real estate securities

     14,207      —        990      15,197

As of December 31, 2009:

           

Assets

           

Preferred equity

   $ 63,894    $ —      $ —      $ 63,894

CMBS and CRE-CDOs

     —        —        8,792      8,792
                           

Investment in real estate securities

     63,894      —        8,792      72,686

The table below presents a reconciliation of the beginning and ending balances of certain of our significant assets having fair value measurements between December 31, 2009 and June 30, 2010 (amounts in thousands).

 

     Preferred
Equity
    CMBS and
CRE-CDOs (1)
 

Beginning balance as of December 31, 2009

   $ 63,894      $ 8,792   

Included in net income (loss)

     (32,272     (6,919

Included in other comprehensive income (loss)

     8,684        (883

Purchases, issuances and settlements

     (26,099     —     
                

Total change in fair value

   $ (49,687   $ (7,802

Transfers in and/or out of Level 3

     —          —     
                

Ending balance as of June 30, 2010

   $ 14,207      $ 990   
                

 

(1) Amounts presented include an other-than-temporary impairment charge of approximately $5.4 million, amortization due to the cost recovery method of accounting of approximately $1.8 million offset by net amortization of approximately $265,000.

 

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Fair Value Estimates of Investments in Real Estate Securities

Our real estate securities are valued in two categories, comprised of preferred equity securities, and CMBS and CRE-CDOs. Our pricing procedures for each of the two categories are applied to each specific investment within their respective categories.

Preferred Equity Securities — The valuation of our investments in preferred equity securities is determined using exchange-listed prices in an active market. As such, preferred equity securities fall within Level 1 of the fair value hierarchy.

CMBS and CRE-CDOs — We estimate the fair value of our CMBS and CRE-CDO securities using a combination of observable market information and unobservable market assumptions. Observable market information considered in these fair market valuations include benchmark interest rates, interest rate curves, credit market indexes and swap curves. Unobservable market assumptions considered in the determination of the fair market valuations of our CMBS and CRE-CDO investments include market assumptions related to discount rates, default rates, prepayment rates, reviews of trustee or investor reports and nonbinding broker quotes and pricing services in what is currently an inactive secondary market. Additionally, we consider security-specific characteristics in determining the fair values of our CMBS and CRE-CDO investments, which include consideration of credit enhancements, the underlying collateral’s average default rates, the average delinquency rate and loan-to-value and several other characteristics. As a result, both Level 2 and Level 3 inputs are used in arriving at the valuation of our investments in CMBS and CRE-CDOs. We consider the Level 3 inputs considered in determining the fair value of its investments in CMBS and CRE-CDO securities to be significant. As such, all investments in CMBS and CRE-CDO securities fall under the Level 3 category of the fair value hierarchy.

Nonrecurring Fair Value Measurements

During the six months ended June 30, 2010, we recognized provision losses related to one of our debt related investments in the accompanying statements of operations. This provision was entirely related to one B-note debt investment and we recorded a complete loss for the debt investment based on our determination that future cash flows from this investment were highly uncertain and that there was no fair value attributable to the debt investment as of June 30, 2010. Our estimate of the fair value of this debt investment was made primarily using a discounted cash flow analysis of the underlying collateral that was comprised of unobservable market assumptions and market data. Such assumptions considered factors such as market leasing rates, prospects for lease renewal, acquisition of new tenants, the incurrence of possible capital expenditures, consideration of the in-place financing structure, comparable sales of similar properties and/or debt investments, transaction costs and the potential for additional financing and/or refinancing. We consider the Level 3 inputs used in determining the fair value of this debt investment to be significant. As such, this investment falls under the Level 3 category of the fair value hierarchy.

10. FAIR VALUE OF FINANCIAL INSTRUMENTS

We are required to disclose the fair value of our financial instruments for which it is practical to estimate the value. The fair value of a financial instrument is the amount at which such financial instrument could be exchanged in a current transaction between willing parties, other than in a forced sale or liquidation. For certain of our financial instruments, fair values are not readily available since there are no active trading markets as characterized by current exchanges between willing parties. Accordingly, we derive our estimated fair value using various valuation techniques, such as computing the present value of estimated future cash flows using discount rates commensurate with the risks involved. However, the determination of estimated cash flows may be subjective and imprecise and changes in assumptions or estimation methodologies can have a material effect on these estimated fair values. In that regard, the fair value estimates may not be substantiated by comparison to independent markets, and in many cases, may not be realized in immediate settlement of the instrument. See Note 9 for further discussion of our determination of fair values in inactive markets and the corresponding application of the fair value hierarchy.

The fair values estimated below are indicative of certain interest rate and other assumptions as of June 30, 2010 and December 31, 2009, and may not take into consideration the effects of subsequent interest rate or other assumption fluctuations, or changes in the values of underlying collateral. The fair values of cash and cash equivalents, restricted cash, accounts receivable, and accounts payable and accrued expenses approximate their carrying values because of the short-term nature of these instruments. In addition, we determined that the fair value of our other secured borrowings approximate their carrying values as of June 30, 2010 and December 31, 2009.

 

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The carrying amounts and estimated fair values of our other financial instruments as of June 30, 2010 and December 31, 2009 were as follows (amounts in thousands).

 

     As of June 30, 2010    As of December 31, 2009
     Carrying
Amount
   Estimated
Fair Value
   Carrying
Amount
   Estimated
Fair Value

Assets:

           

Investments in real estate securities

   $ 15,197    $ 15,197    $ 72,686    $ 72,686

Fixed-rate debt related investments, net

     117,080      117,253      106,562      103,691

Floating-rate debt related investments, net

     33,947      31,951      33,950      30,328

Derivative instruments

     237      237      —        —  

Liabilities:

           

Fixed-rate mortgage notes

   $ 1,213,377    $ 1,202,451    $ 764,967    $ 723,005

Floating-rate mortgage notes

     552,195      541,087      62,647      61,202

Derivative liabilities

     —        —        28      28

Repurchase Facility

     61,478      61,478      —        —  

See Note 9 for details regarding methodologies and key assumptions applied to determining the fair value of our investments in real estate securities and derivative liabilities. The methodologies used and key assumptions made to estimate fair values of the other financial instruments described in the above table are as follows:

Debt Related Investments — The fair value of our debt investments as of June 30, 2010 and December 31, 2009, was estimated using a discounted cash flow analysis that utilized estimates of scheduled cash flows and discount rates estimated to approximate those that a willing buyer and seller might use. Our estimate of such discount rates are based on unobservable Level 3 inputs, which we have determined to be our best estimate of current market rates of similar instruments.

Mortgage Notes — The fair value of our fixed-rate mortgage notes as of June 30, 2010 and December 31, 2009, was estimated using a discounted cash flow analysis, based on our estimate of market interest rates. Credit spreads relating to the underlying instruments are based on unobservable Level 3 inputs, which we have determined to be our best estimate of current market spreads of similar instruments.

11. NONCONTROLLING INTERESTS

Our noncontrolling interests consist of three components: (i) joint venture partnership interests held by our partners, (ii) OP Units held by third parties and our Advisor and (iii) special units held by the parent of our Advisor. The following table summarizes noncontrolling interest balances as of June 30, 2010 and December 31, 2009 in terms of cumulative contributions, distributions and cumulative allocations of net income (loss) (amounts in thousands).

 

     As of June 30,
2010
    As of December 31,
2009
 

OP Units:

    

Contributions

   $ 106,809      $ 63,527   

Distributions

     (9,111     (6,917

Share of net loss

     (7,997     (8,062

Share of comprehensive loss

     2,506        3,481   
                

Subtotal

     92,207        52,029   

Joint Venture Partner Interests:

    

Contributions

   $ 35,420        35,383   

Distributions

     (14,472     (13,328

Share of net loss

     (2,632     (2,514
                

Subtotal

     18,316        19,541   

Special Units:

    

Contributions

     1        1   

Distributions

     —          —     

Share of net loss

     —          —     
                

Subtotal

     1        1   
                

Total

   $ 110,524      $ 71,571   
                

 

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OP Units

As of June 30, 2010 and December 31, 2009, we owned approximately 94.0% and 96.3% of our Operating Partnership, respectively, and the remaining interests in our Operating Partnership were owned by third-party investors and our Advisor. After a period of one year from the date of issuance, holders of OP Units may request the Operating Partnership to redeem their OP Units. We have the option of redeeming the OP Units with cash, shares of our common stock, or with a combination of cash and shares of our common stock.

In May 2005, our Operating Partnership issued 20,000 OP Units to our Advisor for gross proceeds of $200,000, which represented less than a 0.1% ownership interest in our Operating Partnership as of June 30, 2010. In addition, as of June 30, 2010 and December 31, 2009, our Operating Partnership had issued approximately 11.7 million and 7.0 million OP Units, respectively, to third-party investors in connection with its private placement offerings, and such units had a maximum approximate redemption value of $117.4 million and 70.0 million, respectively, based on the most recent selling price of our common stock pursuant to a primary offering. During the six months ended June 30, 2010, our Operating Partnership issued approximately 4.7 million OP units.

12. STOCKHOLDERS’ EQUITY

Common Stock

We have raised equity capital through selling shares of our common stock pursuant to two public offerings and reinvestment of dividends by our stockholders through our distribution reinvestment plan (the “DRIP Plan”). We terminated our primary public offering in 2009. We have and intend to continue to offer shares of common stock through our DRIP Plan. The following table summarizes shares sold, gross proceeds received and the commissions and fees paid by offering as of June 30, 2010 (amounts in thousands).

 

     Shares     Gross
Proceeds
    Commissions
and Fees
    Net
Proceeds
 

Shares sold in the initial offering

   114,742      $ 1,136,968      $ (104,295   $ 1,032,673   

Shares sold in the follow-on offering

   67,140        659,831        (55,329     604,502   

Shares sold pursuant to our distribution reinvestment plan in the initial offering

   3,455        32,825        (309     32,516   

Shares sold pursuant to our distribution reinvestment plan in the follow-on offering

   12,150        115,431        —          115,431   

Shares repurchased pursuant to our share redemption program

   (14,628     (136,843     —          (136,843
                              

Total

   182,859      $ 1,808,212      $ (159,933   $ 1,648,279   
                              

For the six months ended June 30, 2010, approximately 2.9 million shares of our common stock were issued in connection with the DRIP Plan for net proceeds of approximately $27.1 million. During the six months ended June 30, 2010, we redeemed approximately 2.9 million shares of common stock pursuant to our share redemption program for a total repurchase amount of approximately $26.9 million.

During the three and six months ended June 30, 2010, we declared distributions to our common stockholders of approximately $27.6 million and $55.2 million, respectively. Of these amounts, approximately $14.6 million and $28.9 million, respectively, were paid or payable in cash and approximately $13.0 million and $26.3 million, respectively, were reinvested in shares of our common stock pursuant to our DRIP Plan. For the same periods in 2009, we declared distributions to our common stockholders of approximately $25.6 million and $50.0 million, respectively. Of these amounts, approximately $12.2 million and $23.4 million, respectively, were paid or payable in cash and approximately $13.4 million and $26.6 million, respectively, were reinvested in shares of our common stock pursuant to our DRIP Plan.

13. RELATED PARTY TRANSACTIONS

Our Advisor

Our day-to-day activities are managed by our Advisor, under the terms and conditions of the Advisory Agreement. Our Advisor is considered to be a related party as certain indirect owners and employees of our Advisor serve as our executives. The responsibilities of our Advisor include, among other things, the selection and underwriting of our real property, debt related investments and real estate securities, the negotiations for these investments, the asset management and financing of these investments and the selection of prospective joint venture partners. As of June 30, 2010 and December 31, 2009, we owed approximately $56,000 and $35,000, respectively, to our Advisor and affiliates of our Advisor for such services and reimbursement of certain expenses.

 

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Acquisition Fees

Pursuant to the Advisory Agreement, we pay certain acquisition fees to the Advisor. For each real property acquired in the operating stage, the acquisition fee is an amount equal to 1.0% of our proportional interest in the purchase price of the property. For each real property acquired prior to or during the development or construction stage, the acquisition fee will be an amount not to exceed 4.0% of the total project cost (which will be the amount actually paid or allocated to the purchase, development, construction or improvement of a property exclusive of acquisition fees and acquisition expenses). The Advisor also is entitled to receive an acquisition fee of 1.0% of the principal amount in connection with the origination or acquisition of any type of debt investment including, but not limited to, the origination of mortgage loans, B-notes, mezzanine debt, participating debt (including with equity-like features), non-traded preferred securities, convertible debt, hybrid instruments, equity instruments and other related investments. Approximately $14.0 million acquisition fees were earned by the Advisor during the three and six months ended June 30, 2010, primarily related to the acquisition of the National Office and Industrial Portfolio. During the same period in 2009, our Advisor earned approximately $650,000 and $1.3 million, respectively, in acquisition fees.

Asset Management Fees

We also pay our Advisor an asset management fee pursuant to the Advisory Agreement in connection with the asset and portfolio management of real property, debt related investments and real estate securities. The Advisor’s asset management fee is payable as follows:

Prior to the Dividend Coverage Ratio Date (as defined below):

For Direct Real Properties (as defined below), the asset management fee consists of (i) a monthly fee of one-twelfth of 0.50% of the aggregate cost (before noncash reserves and depreciation) of Direct Real Properties and (ii) a monthly fee of 6% of the aggregate monthly net operating income derived from all Direct Real Properties provided; however, that the aggregate monthly fee to be paid to the Advisor pursuant to these subclauses (i) and (ii) in aggregate shall not exceed one-twelfth of 0.75% of the aggregate cost (before noncash reserves and depreciation) of all Direct Real Properties.

For Product Specialist Real Properties (as defined below), the asset management fee consists of (i) a monthly fee of one-twelfth of 0.50% of the aggregate cost (before noncash reserves and depreciation) of Product Specialist Real Properties and (ii) a monthly fee of 6% of the aggregate monthly net operating income derived from all Product Specialist Real Properties.

After the Dividend Coverage Ratio Date (as defined below):

For all real properties, the asset management fee consists of: (i) a monthly fee of one-twelfth of 0.50% of the aggregate cost (before noncash reserves and depreciation) of all real property assets within our portfolio and (ii) a monthly fee of 8.0% of the aggregate monthly net operating income derived from all real property assets within our portfolio.

Direct Real Properties “: shall mean those real properties acquired directly by us without the advice or participation of a product specialist engaged by the Advisor.

Dividend Coverage Ratio ”: shall mean, as to any given fiscal quarter, the total amount of distributions made by us in that fiscal quarter divided by the aggregate funds from operations for that fiscal quarter.

Dividend Coverage Ratio Date ”: shall be the date on which our dividend coverage ratio has been less than or equal to 1.00 for two consecutive fiscal quarters.

Product Specialist Real Properties ”: shall mean those real properties acquired by us pursuant to the advice or participation of a product specialist engaged by the Advisor pursuant to a contractual arrangement.

In addition, both before and after the Dividend Coverage Ratio Date, the asset management fee for all real property assets (acquired both prior to and after the Dividend Coverage Ratio Date) includes a fee of 1.0% of the sales price of individual real property assets upon disposition. To date, we have not met the Dividend Coverage Ratio threshold. As such, as of June 30, 2010, we have and continue to pay our Advisor asset management fees pursuant to the asset management fee structure applicable to us prior to the Dividend Coverage Ratio Date.

For debt related investments, other than Debt Advisor (defined below) debt related investments, and securities investments, both before and after the Dividend Coverage Ratio Date, the asset management fee consists of a monthly fee equal to one-twelfth of 1.0% of (i) the amount invested in the case of our debt related assets within our portfolio and (ii) the aggregate value, determined at least quarterly, of our real estate-related securities.

 

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We have agreed to pay our Advisor certain acquisition and asset management fees that differ from the fee structure discussed above to facilitate the acquisition and management of certain debt investments that we may acquire pursuant to a product specialist agreement that our Advisor has entered into with the Debt Advisor (defined below). See the section below entitled “The Debt Advisor” for additional details of this agreement and the corresponding fee structure.

For the three and six months ended June 30, 2010, our Advisor earned approximately $4.3 million and $8.0 million in asset management fees, respectively. For the same period in 2009, our Advisor earned approximately $3.2 million and $6.1 million in asset management fees, respectively.

Other Expense Reimbursements

We are also obligated, subject to certain limitations, to reimburse our Advisor for certain expenses incurred on our behalf for providing services contemplated in the Advisory Agreement (the Advisor utilizes its employees to provide such services and in certain instances that includes our named executive officers) provided that the Advisor does not receive a specific fee for the activities that generate the expenses to be reimbursed. For the three and six months ended June 30, 2010, we incurred approximately $385,000 and $641,000, respectively, of these expenses, which we reimbursed to the Advisor. We record these reimbursements as general and administrative expenses in our statements of operations. For the same period in 2009, we incurred approximately $185,000 and $383,000, respectively, of these expenses.

Product Specialists

In addition to utilizing its own management team, the Advisor has formed strategic alliances with recognized leaders in the real estate and investment management industries. These alliances are intended to allow the Advisor to leverage the organizational infrastructure of experienced real estate developers, operators and investment managers and to potentially give us access to a greater number of real property, debt related and real estate securities investment opportunities. The use of product specialists or other service providers does not eliminate or reduce the Advisor’s fiduciary duty to us. The Advisor retains ultimate responsibility for the performance of all of the matters entrusted to it under the Advisory Agreement.

The Advisor’s product specialists are and will be compensated through a combination of (i) reallowance of acquisition, disposition, asset management and/or other fees paid by us to the Advisor and (ii) potential profit participation in connection with specific portfolio asset(s) identified by them and invested in by us. We may enter into joint ventures or other arrangements with affiliates of the Advisor to acquire, develop and/or manage real properties. As of June 30, 2010, our Advisor had entered into joint venture and/or product specialist arrangements with two current affiliates (Dividend Capital Investments LLC and FundCore LLC) and one former affiliate (DCT Industrial Trust Inc.), as discussed below in more detail.

Dividend Capital Investments LLC

On June 12, 2006, our Advisor entered into a product specialist agreement with Dividend Capital Investments LLC (“DCI”), in connection with investment management services related to our investments in real estate securities assets. Pursuant to this agreement, a portion of the asset management fee that our Advisor receives from us related to real estate securities investments is reallowed to DCI in exchange for services provided.

The Debt Advisor

In August 2009, the Advisor entered into a product specialist agreement (the “Debt Advisor PSA”) with FundCore Finance Group LLC (the “Debt Advisor”), an entity formed by affiliates of Hudson River Partners Real Estate Investment Management L.P. (“HRP”) and certain affiliates of the Advisor. Pursuant to the Debt Advisor PSA, the Debt Advisor has the right to perform acquisition and asset management services with respect to up to $130 million (plus any available leverage) of certain debt investments to be made by us. On August 5, 2009, the Advisor also entered into another product specialist agreement (the “HRP PSA”) with HRP. Pursuant to the HRP PSA, HRP has the right to perform the acquisition and asset management services with respect to up to $20 million (plus any available leverage) of certain debt investments to be made by us.

We amended our advisory agreement with respect to the timing and amount of certain fees paid for acquisition and asset management services related to certain debt investments that will be provided by the Debt Advisor. The following is a summary of fees that will be paid to our Advisor related to the acquisition and management of such debt investments.

Debt Investment Acquisition Fees

For debt investments acquired pursuant to the Debt Advisor PSA discussed above, the Advisor will receive an acquisition fee equal to the sum of:

 

  (i) 1.0% of the relevant debt investment amount,

 

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  (ii) any origination or similar fees paid by the applicable borrower at the time the debt investment is made (not to exceed 1.50% of the net debt investment amount), and

 

  (iii) an amount equal to the discounted present value (using a discount rate of 15%) of 1.0% per annum of the net debt investment amount (taking into account any anticipated principal amortization) for a period of time equal to the lesser of the term of the debt investment (excluding extension option years) or four years (collectively referred to as the “Initial Term”). This fee is reduced by the amount payable by borrowers pursuant to clause (ii) above.

The total acquisition fee and acquisition expenses shall not exceed 6.0% of the net debt investment amount. The acquisition fee shall be payable on the closing date of the relevant debt investment and will be reallowed in full by our Advisor to the Debt Advisor pursuant to the Debt Advisor PSA.

Debt Investment Asset Management Fees

For debt investments acquired pursuant to the Debt Advisor PSA discussed above, the Advisor will receive asset management fees pursuant to the following:

 

  (i) during the first 12 months after the closing of the respective debt investment, the Advisor shall receive a monthly asset management fee consisting of one-twelfth of the total amount, if any, by which the sum of the total acquisition fees and expenses exceeds 6.0% of the relevant net debt investment amount;

 

  (ii) during the balance of the Initial Term, zero; and

 

  (iii) during any period following the Initial Term during which the relevant debt investment is outstanding, the asset management fee will consist of a monthly fee of one-twelfth of 1.0% of the net debt investment amount.

As of June 30, 2010, we had acquired two debt related investments pursuant to our arrangement with the Debt Advisor with a carrying amount of approximately $17.0 million and paid an acquisition fee of approximately $610,000 to our Advisor, which was fully reallowed to FundCore LLC.

In addition, HRP earned a fee of $1.0 million in connection with services it rendered to us in obtaining financing for our acquisition of the NOIP Portfolio, which we paid subsequent to closing.

DCT Industrial Trust Inc.

Our Advisor has entered into certain product specialist agreements with DCT Industrial Trust Inc. (“DCT”), a former affiliate of ours, in connection with acquisition and asset management services related to our industrial real property investments. Pursuant to these agreements, a portion of the acquisition and asset management fees that our Advisor receives from us related to specific industrial real property investments is reallowed to DCT in exchange for services provided.

In June 2007, DCT Joint Venture I LLC incurred a secured $16.0 million 6.0% interest note, maturing with one balloon payment in July 2014 to DCT. Interest is due monthly on the unpaid balance. For the three and six months ended June 30, 2010, we recognized interest expense from this mortgage note of approximately $241,000 and $481,000, respectively. For the same period in 2009, we recognized interest expense from this mortgage note of approximately $241,000 and $481,000, respectively.

14. NET INCOME (LOSS) PER COMMON SHARE

Reconciliations of the numerator and denominator used to calculate basic net income (loss) per common share to the numerator and denominator used to calculate diluted net income (loss) per common share for the three and six months ended June 30, 2010 and 2009, are described in the following table (amounts in thousands, except per share information).

 

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     For the Three Months Ended June 30,     For the Six Months Ended June 30,  
Numerator    2010    2009     2010    2009  

Net income (loss) for basic earnings per share attributable to common stockholders

   $ 7,508    $ (18,377   $ 994    $ (18,702

Dilutive noncontrolling interests share in net income (loss)

     313      (769     65      (783
                              

Numerator for diluted earnings per share – adjusted income (loss)

   $ 7,821    $ (19,146   $ 1,059    $ (19,485
                              

Denominator

          

Weighted average shares outstanding-basic

     184,321      170,514        184,301      166,746   

Incremental weighted average shares effect of conversion of OP units

     7,655      7,138        7,323      7,176   
                              

Weighted average shares outstanding-diluted

     191,976      177,652        191,624      173,922   
                              

NET LOSS PER COMMON SHARE

          

Net income (loss) attributable to common stockholders - basic

   $ 0.04    $ (0.11   $ 0.01    $ (0.11

Net income (loss) attributable to common stockholders - diluted

   $ 0.04    $ (0.11   $ 0.01    $ (0.11

15. SEGMENT INFORMATION

We have three business segments, which are real property, debt related investments and real estate securities. We organize and analyze the operations and results of each of these segments independently, due to inherently different considerations for each segment. Such considerations include, but are not limited to, the nature and characteristics of the investment, investment strategies and objectives and distinct management of each segment. The following table sets forth components of net operating income (“NOI”) of our segments for the three and six months ended June 30, 2010 and 2009 (amounts in thousands).

 

     For the Three Months Ended June 30,
     Revenues    NOI
     2010    2009    2010    2009

Real property

   $ 40,758    $ 36,271    $ 30,606    $ 27,216

Debt related investments (1)

     4,094      2,262      4,094      2,262

Real estate securities

     770      1,429      770      1,429
                           

Total

   $ 45,622    $ 39,962    $ 35,470    $ 30,907
                           
     For the Six Months Ended June 30,
     Revenues    NOI
     2010    2009    2010    2009

Real property

   $ 79,649    $ 69,912    $ 58,465    $ 51,819

Debt related investments (1)

     8,080      4,468      8,080      4,468

Real estate securities

     2,205      5,130      2,205      5,130
                           

Total

   $ 89,934    $ 79,510    $ 68,750    $ 61,417
                           

 

(1) Includes operating results from our investment in an unconsolidated joint venture.

We consider NOI to be an appropriate supplemental financial performance measure, because NOI reflects the specific operating performance of our real properties, debt related investments and real estate securities, and excludes certain items that are not considered to be controllable in connection with the management of each property, such as interest income, depreciation and amortization, general and administrative expenses, asset management fees, interest expense and noncontrolling interests. However, NOI should not be viewed as an alternative measure of our financial performance as a whole, since it does exclude such items that could materially impact our results of operations. Further, our NOI may not be comparable to that of other real estate companies, as they may use different methodologies for calculating NOI. Therefore, we believe net income, as defined by GAAP, to be the most appropriate measure to evaluate our overall financial performance.

 

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The following table is a reconciliation of our NOI to our reported net income (loss) from continuing operations for the three and six months ended June 30, 2010 and 2009 (amounts in thousands).

 

     For the Three Months Ended June 30,     For the Six Months Ended June 30,  
     2010     2009     2010     2009  

Net operating income

   $ 35,470      $ 30,907      $ 68,750      $ 61,417   

Interest and other income

     40        836        245        2,101   

Depreciation and amortization expense

     (15,283     (14,810     (31,081     (28,989

General and administrative expenses

     (1,731     (1,410     (3,101     (2,497

Asset management fees, related party

     (4,338     (3,177     (7,957     (6,131

Interest expense

     (15,768     (14,551     (30,620     (27,186

Acquisition-related expenses net of other gains

     (19,080     (1,739     (19,084     (3,776

Gain (loss) on derivatives

     (112     (8,601     (112     (8,012

Gain on disposition of real estate securities

     32,272        —          32,272        —     

Other-than-temporary impairment on securities

     (3,695     (6,678     (5,387     (6,678

Provision for loss on debt related investments

     —          —          (2,984     —     

Net income (loss) attributable to noncontrolling interests

     (267     846        53        1,049   
                                

Net income (loss) attributable to common stockholders

   $ 7,508      $ (18,377   $ 994      $ (18,702
                                

The following table reflects our total assets by business segment as of June 30, 2010 and December 31, 2009 (amounts in thousands).

 

     As of June 30,
2010
   As of December 31,
2009

Segment assets:

     

Net investments in real property

   $ 2,909,513    $ 1,539,408

Debt related investments, net (1)

     151,027      157,898

Investments in real estate securities

     15,197      72,686
             

Total segment assets, net

     3,075,737      1,769,992

Non-segment assets:

     

Cash and cash equivalents

     162,572      514,786

Other non-segment assets (2)

     87,838      78,213
             

Total assets

   $ 3,326,147    $ 2,362,991
             

 

(1) Includes our investment in an unconsolidated joint venture. See Note 5.
(2) Other nonsegment assets primarily consist of corporate assets including restricted cash and certain loan costs, including loan costs associated with our financing obligations.

16. SUBSEQUENT EVENTS

We have evaluated subsequent events for the period from June 30, 2010, the date of these financial statements, through the date these financial statements are issued.

Potential Disposition of Real Properties Included in the NOIP Portfolio

In August 2010, we entered into an agreement to sell a portfolio of six industrial properties comprising approximately 4.7 million net rentable square feet that we had acquired as part of the NOIP Portfolio that are 100% leased to Goodyear Tire and Rubber Company (the “Goodyear Portfolio”). Pursuant to this agreement, we anticipate selling the Goodyear Portfolio for a purchase price of approximately $172.5 million. Furthermore, we anticipate that certain proceeds from the disposition of the Goodyear Portfolio will be used to repay approximately $165.7 million of the outstanding principal balance of the NOIP Floating Rate Loan and approximately $3.4 million of the outstanding principal balance of the mezzanine loans related to the NOIP Portfolio. Specifically, we expect that the approximate $3.4 million repayment will be related to the $66.2 million tranche of the mezzanine loan financing associated with the NOIP Portfolio. This tranche matures in June 2013 and bears interest at 10.00%. We currently expect that we will dispose of the Goodyear Portfolio in the third quarter of 2010. However, there can be no assurance that the disposition and related repayments of borrowings will be consummated on the terms described above or at all.

Partial Repayment of Mezzanine Loan

        In July 2010, we repaid the Sellers of the NOIP Portfolio $25.0 million of the interest only, $66.2 million tranche of the mezzanine loan financing associated with the NOIP Portfolio. This tranche matures in June 2013 and bears interest at 10.00%.

Northrop Litigation

        On July 14, 2010, Northrop Grumman Systems Corporation (“Northrop”) filed a complaint in the Circuit Court of Fairfax County, Virginia against iStar NG, LP, TRT Acquisitions, LLC, TRT NOIP Colshire - McLean LLC, and Dividend Capital Total Realty Trust Inc. (together, the “Dividend Capital Defendants”) and iStar Financial Inc. (“iStar Financial” and, together with Dividend Capital Defendants, the “Defendants”). Northrop’s Complaint pertains to a real estate project containing two commercial office buildings and a parking garage located at 7555-7575 Colshire Drive in McLean, Virginia (the “Project”). TRT NOIP Colshire - McLean LLC, a wholly-owned subsidiary of Dividend Capital Total Realty Trust Inc., acquired iStar NG, LP as part of the National Office and Industrial Portfolio acquired from several subsidiaries of iStar Financial on June 25, 2010. Northrop, a holder of a leasehold interest in the Project, alleges that iStar Financial and the Dividend Capital Defendants knowingly completed the sale of the Project (rather than a sale of the owner of the Project, iStar NG, LP). Northrop’s Complaint claims that the alleged sale of the Project violated Northrop’s right of first offer (“ROFO”) contained in the relevant deed of lease. Northrop’s Complaint seeks specific performance of the ROFO, other injunctive relief, compensatory damages in the amount of $250 million, $350,000 in punitive damages, treble damages under the Virginia Business Conspiracy Statute, costs, and attorneys’ fees. On August 10, 2010, Defendants filed with the Fairfax County Circuit Court papers seeking dismissal of Northrop’s Complaint as a matter of law. In addition to defending Northrop’s Complaint generally and asserting counterclaims, the Dividend Capital Defendants have obtained indemnities from iStar Financial and insurance coverage that are subject to certain terms, conditions and limitations.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Forward-Looking Statements

This Quarterly Report on Form 10-Q includes certain statements that may be deemed to be “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Such forward-looking statements relate to, without limitation, our future capital expenditures, distributions, acquisitions and dispositions (including the amount and nature thereof), other development trends of the real estate industry, business strategies, and the growth of our operations. These statements are based on certain assumptions and analyses made by us in light of our experience and our perception of historical trends, current conditions, expected future developments and other factors we believe are appropriate. We intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in Section 27A of the Act and Section 21E of the Exchange Act. Such statements are subject to a number of assumptions, risks and uncertainties which may cause our actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by these forward-looking statements. Forward-looking statements are generally identifiable by the use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “intend,” “project,” “continue,” or the negative of these words, or other similar words or terms. Readers are cautioned not to place undue reliance on these forward-looking statements. Among the factors that may cause our results to vary are general economic and business (particularly real estate and capital market) conditions being less favorable than expected, the business opportunities that may be presented to and pursued by us, changes in laws or regulations (including changes to laws governing the taxation of REITs), risk of acquisitions, including risks related to the integration of the NOIP Portfolio, availability and creditworthiness of prospective tenants, availability of capital (debt and equity), interest rate fluctuations, competition, supply and demand for properties in our current and any proposed market areas, tenants’ ability to pay rent at current or increased levels, accounting principles, policies and guidelines applicable to REITs, environmental, regulatory and/or safety requirements, tenant bankruptcies and defaults, the availability and cost of comprehensive insurance, including coverage for terrorist acts, and other factors, many of which are beyond our control. For a further discussion of these factors and other risk factors that could lead to actual results materially different from those described in the forward-looking statements, see “Item 1A. Risk Factors” in our Annual Report on Form 10-K filed with the Commission on March 30, 2009 and in this quarterly report Form 10-Q. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of future events, new information or otherwise.

This section of our Quarterly Report on Form 10-Q provides an overview of what management believes to be the key elements for understanding (i) our company and how we manage our business, (ii) how we measure our performance and our operating results, (iii) our liquidity and capital resources, and (iv) the financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q.

Overview

Dividend Capital Total Realty Trust Inc. is a Maryland corporation formed on April 11, 2005 to invest in a diverse portfolio of real property and real estate-related investments. As used herein, “the Company,” “we,” “our” and “us” refer to Dividend Capital Total Realty Trust Inc. and its consolidated subsidiaries and partnerships, except where the context otherwise requires.

We operate in a manner intended to qualify as a real estate investment trust (“REIT”) for federal income tax purposes, commencing with the taxable year ended December 31, 2006, when we first elected REIT status. We utilize an Umbrella Partnership Real Estate Investment Trust (“UPREIT”) organizational structure to hold all or substantially all of our assets through our operating partnership, Dividend Capital Total Realty Operating Partnership, L.P. (our “Operating Partnership”). Furthermore, our Operating Partnership wholly owns a taxable REIT subsidiary, DCTRT Leasing Corp. (our “TRS”), through which we execute certain business transactions that might otherwise have an adverse impact on our status as a REIT if such business transactions were to occur directly or indirectly through our Operating Partnership.

The primary source of our revenue and earnings is comprised of rent received from customers under long-term (generally three to ten years) operating leases of our properties, including reimbursements from tenants for certain operating costs, interest payments from our debt related investments and interest and dividend payments from our investments in real estate securities. Our primary expenses include rental expenses, depreciation and amortization expenses, general and administrative expenses, asset management fees and interest expense.

We are an externally managed REIT and have no employees. Our day-to-day activities are managed by Dividend Capital Total Advisors LLC (our “Advisor”), an affiliate, under the terms and conditions of an advisory agreement (the “Advisory Agreement”). Our Advisor and its affiliates receive or have received various forms of compensation, reimbursements and fees for services relating to our public and private offerings and for the investment and management of our real estate assets.

 

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The cornerstone of our investment strategy is to provide investors seeking a general real estate allocation with a broadly diversified portfolio of assets. Our targeted investments include:

 

  1. Direct investments in real properties, consisting of office, industrial, retail, multifamily, hospitality and other properties, primarily located in North America;

 

  2. Certain debt related investments, including originating and participating in whole mortgage loans secured by commercial real estate, B-notes, mezzanine debt and other related investments; and

 

  3. Investments in real estate securities, including securities issued by other real estate companies, commercial mortgage-backed securities (“CMBS”) and commercial real estate collateralized debt obligations (“CRE-CDOs”) and similar investments.

We closed our primary offering of common shares in September of 2009 which marked the completion of our initial capital raising stage through which we raised approximately $2.0 billion in gross proceeds and after fees, commissions and reimbursements, we realized $1.8 billion in net proceeds from both our offering of common stock and fractional interests. Since our inception, we have been actively seeking investments for our capital and with the acquisition of the National Office and Industrial Portfolio or NOIP Portfolio (discussed below) we have substantially invested all the capital raised to date. However, to a lesser extent, we will continue to seek investment opportunities that complement our existing portfolio and we will persist to evaluate certain existing investments to monetize such investments at what believe to be attractive prices. We continue to actively and vigorously manage our portfolio in order to drive growth within our existing investments.

As of June 30, 2010, we had total gross investments of approximately $3.3 billion (before accumulated depreciation of approximately $178.2 million), comprised of:

 

  (1) 110 operating properties located in 33 geographic markets in the United States, aggregating approximately 24.3 million net rentable square feet. Our operating real property portfolio includes an aggregate gross investment amount of approximately $3.1 billion and consists of:

 

   

39 office properties located in 16 geographic markets, aggregating approximately 7.5 million net rentable square feet, with an aggregate gross investment amount of approximately $1.7 billion;

 

   

37 industrial properties located in 17 geographic markets, aggregating approximately 13.7 million net rentable square feet, with an aggregate gross investment amount of approximately $660.2 million; and

 

   

34 retail properties located in 10 geographic markets, aggregating approximately 3.0 million net rentable square feet, with an aggregate gross investment amount of approximately $712.7 million.

 

  (2) Approximately $151.0 million in net debt related investments, including (a) investments in mortgage notes of approximately $82.1 million, (b) investments in B-notes of approximately $48.9 million and (c) investments in mezzanine debt of approximately $19.9 million.

 

  (3) Approximately $15.2 million in real estate securities, including (a) preferred equity securities of various real estate operating companies and REITs with an aggregate fair value of approximately $14.2 million and (b) CMBS and CRE-CDOs with an aggregate fair value of approximately $1.0 million.

Consistent with our investment strategy, we have three business segments: (i) real property, (ii) debt related investments and (iii) real estate securities. For a discussion of our business segments and the associated revenue and net operating income by segment, see Note 15 to our condensed consolidated financial statements (herein referred to as “financial statements”) included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q.

Any future and near-term investment activity is expected to be funded primarily through the use of cash on hand and the issuance and assumption of debt obligations.

 

   

Cash on hand — As of June 30, 2010, we had approximately $162.6 million of cash and cash equivalents.

 

   

The issuance and assumption of debt obligations — As of June 30, 2010, we had total debt obligations of approximately $1.8 billion comprised of approximately $1.8 billion of mortgage notes and $61.5 million of other secured borrowings outstanding.

We believe that our cash balance as of June 30, 2010 remains adequate to meet our expected capital obligations for the next twelve months. Maintaining a strong cash balance remains critical in the current market to position us well in order for us to preserve the value of our portfolio and to a lesser extent to take advantage of investment opportunities. Historically, we have been prudent in the deployment of our capital, resulting in a slower pace of investments. This caused us to carry high cash balances over the past couple of years, significantly diluting our goal of funding the payment of quarterly distributions to our investors entirely from our operations over time. With the recent investment in the National Office and Industrial Portfolio, we have made significant progress towards this goal and we believe that this investment will have a significant positive impact on our business and results from operations.

 

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Principal Business Risks

In our view, there are several principal near-term business risks we face in achieving our business objectives.

 

   

The risk that the economic recovery is prolonged or a so called “double-dip” recession in the economy could have a materially adverse impact on our operations. This could manifest itself through our real property investments as a result of increased tenant bankruptcies and tenant defaults and generally lower demand for rentable space, which could lead to an oversupply of rentable space or increased rent concessions, tenant improvement expenditures or reduced rental rates to maintain occupancies. As a result, our real property portfolio could realize a decrease in cash flow and overall value which in turn could hinder our ability to fulfill our obligations such as debt service payments, operating expenses and distributions to our investors.

The economic environment and credit market conditions over the past couple of years have already impacted the performance and value of our debt related investments and securities portfolio. We have recognized provisions for loan losses and other-than-temporary impairments and reduced cash flow on our debt-related investments and securities portfolio. If the current economic environment were to persist or worsen, we may see additional impairments and further disruption in cash flow as a result.

 

   

The magnitude of the NOIP Portfolio acquisition comes with significant risks that include the financing we obtained to close the transaction, integration of the operations and significantly decreased levels of liquidity. This portfolio practically doubles the size our real property portfolio and the financing we obtained, in limited cases, involved recourse to our Operating Partnership. We intend to sell certain assets within this portfolio and use the proceeds to pay down debt, but disposing of a significant amount of real property assets can be difficult and we may not be able to fully execute our disposition strategy. See “Risk Factors” under Item 1A of this Quarterly Report on Form 10-Q for a more detailed discussion of the risks associated with this potential acquisition.

 

   

A further principal business risk is our ability to access additional debt financing on reasonable terms. Over the last few years, the U.S. credit markets have experienced severe dislocations and liquidity disruptions which have caused significant volatility in credit spreads on prospective debt financings and created uncertainties with respect to the valuation of assets. While we believe our near term debt maturities to be very manageable, over the medium to longer term, should the value of our portfolio decline significantly (possibly as a result of a prolonged economic recovery or a double-dip recession) it would be difficult to find debt financing on terms similar to our existing financing or at all which may negatively affect returns on our investments and ultimately cash available to distribute to investors.

We believe our investment and financing strategies significantly mitigate these risks. Specifically, the diversification of our portfolio combined with our longer term average lease maturity and debt maturity schedule we believe will help us to withstand a slow economic recovery. Further, the NOIP Portfolio compliments our investment and financing strategy because the majority of the leases included in the NOIP Portfolio are triple-net or absolute leases with single tenants, mitigating the integration risks described above. The execution of our disposition strategy with respect to the NOIP Portfolio will help to significantly reduce our borrowings that have shorter maturities and therefore effectively increase the average maturity of our remaining debt obligations.

Significant Transactions During the Six Months Ended June 30, 2010

Investment Activity

National Office and Industrial Portfolio

On June 25, 2010, through various wholly-owned subsidiaries, we completed the acquisition of a portfolio of office and industrial properties (the “National Office and Industrial Portfolio” or the “NOIP Portfolio”), or interests therein, from several subsidiaries of iStar Financial Inc. (the “Sellers”). The aggregate purchase price of the NOIP Portfolio was approximately $1.35 billion, adjusted for closing costs and customary prorations of taxes, operating expenses, leasing costs and other items. The NOIP Portfolio comprises a diversified portfolio of 32 office and industrial properties located in 16 markets within the United States aggregating approximately 11.3 million net rentable square feet. Included in this portfolio are 21 office properties located in 10 markets aggregating approximately 4.6 million net rentable square feet and 11 industrial properties located in nine markets aggregating 6.7 million net rentable square feet. The properties included in the National Office and Industrial Portfolio are approximately 99% leased, primarily by large corporate tenants subject to triple net leases with a weighted average lease term, based on base rent, of approximately 7.6 years. We anticipate that approximately 50% of the net operating income from the portfolio will be derived from tenants with an investment grade public credit rating. In addition, we expect approximately 95% of the portfolio’s net operating income to be derived from tenants that are publicly traded. Based on the purchase price and our estimate of year-one cash net operating income, the National Office and Industrial Portfolio was acquired at a capitalization rate of approximately 8.1%.

 

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We believe that the NOIP Portfolio offered us an opportunity to deploy our capital to acquire high-quality, real properties leased to creditworthy tenants in premier locations throughout the United States. The NOIP Portfolio is substantially larger than any of our previous acquisitions and nearly doubled the value and size of our investments in real property. As such, this acquisition will significantly impact our results of operations and has impacted the composition and profile of our existing investments by significantly increasing the percentage of our investments in real properties compared to our debt related investments and our investments in real estate securities and the composition of the sectors of which our real property portfolio currently consists. Through the NOIP Portfolio acquisition we entered six new geographic markets. The acquisition of the NOIP Portfolio has also significantly increased our diversity of tenant and industry concentrations. Additionally, the existing lease terms included in the NOIP Portfolio significantly decreased our lease expirations as a percentage of our portfolio over the next five years, and improved our future minimum rent schedules.

Financing Activity

During the six months ended June 30, 2010, we incurred borrowings of approximately $1.0 billion, which was related to debt issued to finance the NOIP Portfolio acquisition and previously unencumbered real properties. We also entered into a master repurchase facility that provided us with borrowings collateralized by certain of our debt investments. The following table is a summary of the borrowings we incurred during the six months ended June 30, 2010 (amounts in thousands). For additional detail, please see Note 6 in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q.

 

Borrowing

   Loan Amount    Stated Interest
Rate (1)
 

Senior mortgage fixed rate loans

   $ 345,000    5.40

Senior mortgage floating rate loans

     492,730    4.49

Mezzanine loans

     105,595    8.84

Other secured borrowings

     61,500    3.69
             

Total/weighted average

   $ 1,004,825    5.21
             

 

(1) The stated interest rate for floating rate borrowings is based upon the applicable LIBOR rate as of June 30, 2010.

Disposition of Preferred Equity Securities

During the three months ended June 30, 2010, we received proceeds of approximately $58.4 million on the disposition of certain preferred equity securities positions. After other-than-temporary impairment charges, the adjusted basis of the securities sold was approximately $26.1 million, resulting in a net gain from the disposition of these preferred equity securities of approximately $32.3 million for the three and six months ended June 30, 2010. Before other-than-temporary impairment charges, the amount invested in the securities sold during the three months ended June 30, 2010 was approximately $78.7 million, resulting in an estimated economic loss of approximately $20.3 million. We did not dispose of any securities during the three and six months ended June 30, 2009.

Equity Capital Raise from Public Offerings

We terminated our primary public offering in 2009. We have and will continue to offer shares of common stock through our distribution reinvestment plan (the “DRIP Plan”). For the six months ended June 30, 2010, our DRIP Plan raised approximately $27.1 million.

How We Measure Our Performance

FFO Definition (“FFO”)

We believe that FFO, as defined by the National Association of Real Estate Investment Trusts (“NAREIT”), is a meaningful supplemental measure of our operating performance because historical cost accounting for real estate assets in accordance with Generally Accepted Accounting Principles (“GAAP”) implicitly assumes that the value of real estate assets diminishes predictably over time, as reflected through depreciation and amortization expense. However, since real estate values have historically risen or fallen with market and other conditions, many industry investors and analysts have considered presentation of operating results for real estate companies that use historical cost accounting to be insufficient. Thus, NAREIT created FFO as a supplemental measure of operating performance for real estate investment trusts that consists of net income (loss), calculated in accordance with GAAP, plus real estate-related depreciation and amortization, less gains (or losses) from dispositions of real estate held for investment purposes.

 

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Company-Defined FFO

As part of its guidance concerning FFO, NAREIT has stated that the “management of each of its member companies has the responsibility and authority to publish financial information that it regards as useful to the financial community.” As a result, modifications to FFO are common among REITs as companies seek to provide financial measures that meaningfully reflect the specific characteristics of their businesses. We believe that investors and other stakeholders who review our operating results are best served by providing them with the same performance metrics used by management to gauge operating performance. Therefore, we are providing users with a Company-Defined FFO measure in addition to the NAREIT definition of FFO and other GAAP measures. However, no single measure can provide users of financial information with sufficient information and only our disclosures read as a whole can be relied upon to adequately portray our financial position, liquidity and results of operations.

Certain GAAP measures, as well as FFO, include items that may affect comparability from period to period. Our primary objective for Company-Defined FFO is to provide investors with a supplemental earnings metric that indicates the performance of our operations before certain non-cash charges, non-operating or other items that management believes affects the comparability of our operating results from period to period. Our Company-Defined FFO is derived by adjusting FFO for the following items: gains and losses on real estate securities, provision for loss on debt related investments, acquisition-related expenses, and gains and losses on derivatives.

Gains and losses on real estate securities - Currently, our investment strategy does not include purchasing and selling real estate securities for the purpose of generating short-term gains. Rather, we are focused on longer-term investments for the purposes of realizing current income from such investments. As such, management believes any gains or losses generated from the sale or impairment of our investments in real estate securities are non-routine and intermittent and may result in a significant impact to our earnings in the period in which such gains or losses are recorded compared to prior or future periods. Period to period fluctuations in gains and losses on real estate securities, including other-than-temporary impairments, can be caused by the accounting treatment for factors affecting our investments in real estate securities that may not translate into our longer term investment strategy and therefore may not be indicative of the long-term performance of such investments. Such gains and losses, including other-than-temporary impairments, have a disproportionate impact to our earnings in the period when such gains and losses are realized through our earnings, affecting comparability from period to period.

Provision for loss on debt related investments - Currently, our investment strategy does not include purchasing and selling investments for the purpose of generating short-term gains. Rather our investment strategy is to hold our investments for the long-term for the purpose of earning current income. As a result, management believes that any gains or losses generated from the sale or impairment of such investments are non-routine and intermittent and result in a disproportionate impact to our earnings in the period in which such gains or losses are recorded compared to prior or future periods.

Acquisition-related expenses - For GAAP purposes, expenses associated with the acquisition of real property, including acquisition fees paid to our Advisor and gains or losses related to the change in fair value of contingent consideration related to the acquisition of real property, are recorded to earnings. As we have previously disclosed, these types of expenditures are to be funded from our net proceeds received from the sale of our common stock and not from our operations.

(Gains) losses on derivatives - Gains and losses on derivatives represent the gains or losses on the fair value of derivative instruments that are not accounted for as hedges of the underlying financing transactions. Such gains and losses may be due to the nonoccurrence of forecasted financings or ineffectiveness due to changes in the expected terms financing transactions. These types of charges are not unusual or infrequent but management believes that any gains or losses on derivatives are not reflective of our operating performance and can have an inconsistent impact to our operating results derived from our core business operations.

Limitations of FFO and Company-Defined FFO

FFO (both NAREIT-defined and Company-Defined) is presented herein as a supplemental financial measure and has inherent limitations. We do not use FFO or Company-Defined FFO as, nor should they be considered to be, an alternative to net income (loss) computed under GAAP as an indicator of our operating performance, or as an alternative to cash from operating activities computed under GAAP, or as an indicator of our ability to fund our short or long-term cash requirements. Management uses FFO as an indication of our operating performance and as a guide to making decisions about future investments. Our FFO and Company-Defined FFO calculations do not present, nor do we intend them to present, a complete picture of our financial condition and operating performance. In addition, other REITs may define FFO and Company-Defined FFO differently and choose to treat impairment charges, acquisition-related expenses and potentially other accounting line items in a manner different from us due to specific differences in investment strategy or for other reasons. Our Company-Defined FFO calculation is limited by its exclusion of certain items previously discussed, but we continuously evaluate our investment portfolio and the usefulness of our Company-Defined FFO measure in relation thereto. We believe that net income (loss) computed under GAAP remains the primary measure of performance and that FFO or Company-Defined FFO are only meaningful when they are used in conjunction with net income (loss) computed under GAAP. Further, we believe that our consolidated financial statements, prepared in accordance with GAAP, provide the most meaningful picture of our financial condition and operating performance.

 

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The following unaudited table presents a reconciliation of FFO and Company-Defined FFO to net loss for the three and six months ended June 30, 2010 and 2009 (amounts in thousands, except per share information).

 

     For the Three Months Ended,
June 30,
    For the Six Months Ended,
June 30,
 
     2010     2009     2010     2009  

Reconciliation of net earnings to FFO:

        

Net income (loss)

     7,775        (19,223     941        (19,751

Add (deduct) NAREIT-defined adjustments:

        

Depreciation and amortization expense

     15,283        14,810        31,081        28,989   

Loss on disposition of real property

     137        —          137        —     

Noncontrolling interests’ share of FFO

     (1,528     (392     (2,430     (1,605
                                

FFO attributable to common shares-basic

     21,667        (4,805     29,729        7,633   

FFO attributable to dilutive OP units

     902        (201     1,209        341   
                                

FFO attributable to common shares-diluted

   $ 22,569      $ (5,006   $ 30,938      $ 7,974   
                                

FFO per share-basic and diluted

   $ 0.12      $ (0.03   $ 0.16      $ 0.05   
                                

Reconciliation of FFO to Company-Defined FFO:

        

FFO attributable to common shares-basic

     21,667        (4,805     29,729        7,633   

Add (deduct) our adjustments:

        

Loss on derivatives

     112        8,601        112        8,012   

Gain on disposition of securities

     (32,272     —          (32,272     —     

Net other-than-temporary impairment on securities

     4,249        7,922        7,185        4,409   

Provision for loss on debt related investments

     —          —          2,984        —     

Acquisition-related expenses

     19,080        1,739        19,084        3,776   

Noncontrolling interest share of our adjustments

     353        (771     136        (778
                                

Company-Defined FFO attributable to common shares-basic

     13,189        12,686        26,958        23,032   

Company-Defined FFO attributable to dilutive OP units

     549        531        1,073        1,109   
                                

Company-Defined FFO attributable to common shares-diluted

   $ 13,738      $ 13,217      $ 28,031      $ 24,161   
                                

Company-Defined FFO per share-basic and diluted

   $ 0.07      $ 0.07      $ 0.15      $ 0.14   
                                

Weighted Average Number of Shares Outstanding

        

Basic

     184,321        170,514        184,301        166,746   
                                

Diluted

     191,997        177,652        191,644        173,922   
                                

We will be hosting a public conference call on Thursday, August 19, 2010 to review our quarterly financial and operating results for the three months ended June 30, 2010. John Blumberg, our Chairman, Guy Arnold, our President and Kirk Scott, our Chief Financial Officer, will present performance data and provide management commentary. The conference call will take place at 4:15 p.m. EDT and can be accessed by dialing 800.659.2090 and referencing “Dividend Capital Passcode 88179553.”

Net Operating Income (“NOI”)

We also use NOI as a supplemental financial performance measure because NOI reflects the specific operating performance of our real properties, debt related investments and real estate securities and excludes certain items that are not considered to be controllable in connection with the management of each property, such as gains on the disposition of securities, other-than-temporary impairment, losses on derivatives, acquisition-related expenses, interest income, depreciation and amortization, general and administrative expenses, asset management fees, interest expense and noncontrolling interests. However, NOI should not be viewed as an alternative measure of our financial performance as a whole, since it does exclude such items that could materially impact our results of operations. Further, our NOI may not be comparable to that of other real estate companies, as they may use different methodologies for calculating NOI. Therefore, we believe net income, as defined by GAAP, to be the most appropriate measure to evaluate our overall financial performance.

 

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Our Operating Results

Three Months Ended June 30, 2010 Compared to the Three Months Ended June 30, 2009

For the three months ended June 30, 2010 and 2009, we had net income of approximately $7.8 million and a net loss of approximately $19.2 million, respectively. The results of our operations for the three months ended June 30, 2010 were substantially different than our results for the same period in 2009, primarily as a result of the gain on disposition of certain of our real estate securities during the current year period and a loss on derivatives in the prior year period. This was partially offset by acquisition costs in the current year period that related to our acquisition of the NOIP Portfolio.

 

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The following unaudited table illustrates the changes in rental revenues, rental expenses, net operating income, other income and other expenses for the three months ended June 30, 2010 compared to the same period in 2009. Our same store portfolio includes all operating properties that we owned for the entirety of both the current and prior year reporting periods. The same store portfolio includes 74 properties acquired prior to January 1, 2009, comprising approximately 12.1 million square feet. A discussion of these changes follows the table (in thousands).

 

     For the Three Months Ended June 30,  
     2010     2009     $ Change  

Revenues

      

Base rental revenue-same store (1) 

   $ 23,946      $ 24,235      $ (289

Other rental revenue-same store

     7,232        8,352        (1,120
                        

Total rental revenue-same store

     31,178        32,587        (1,409

Rental revenue-2010/2009 acquisitions

     9,580        3,684        5,896   
                        

Total rental revenue

     40,758        36,271        4,487   

Debt related income (2)

     4,094        2,262        1,832   

Securities income

     770        1,429        (659
                        

Total Revenue

     45,622        39,962        5,660   

Rental Expenses

      

Same store

     7,459        8,114        (655

2010/2009 acquisitions

     2,693        941        1,752   
                        

Total rental expenses

     10,152        9,055        1,097   

Net Operating Income (3) 

      

Real property - same store

     23,719        24,473        (754

Real property - 2010/2009 acquisitions

     6,887        2,743        4,144   

Debt related income

     4,094        2,262        1,832   

Securities income

     770        1,429        (659
                        

Total net operating income

     35,470        30,907        4,563   

Other Operating Expenses

      

Depreciation and amortization expense

     15,283        14,810        473   

General and administrative expenses

     1,731        1,410        321   

Asset management fees, related party

     4,338        3,177        1,161   

Acquisition-related expenses

     19,080        1,739        17,341   
                        

Total Other Operating Expenses

     40,432        21,136        19,296   

Other Income (Expenses):

      

Interest and other income

     40        836        (796

Interest expense

     (15,768     (14,551     (1,217

Loss on derivatives

     (112     (8,601     8,489   

Gain on disposition of securities

     32,272        —          32,272   

Other-than-temporary impairment on securities

     (3,695     (6,678     2,983   
                        

Total Other Income (Expense)

     12,737        (28,994     41,731   
                        

Net income (loss)

     7,775        (19,223     26,998   
                        

 

(1) Base rental revenue represents contractual base rental revenue earned by us from our tenants and does not include the impact of certain GAAP adjustments to rental revenue, such as straight-line rent adjustments, amortization of above-market intangible lease assets or the amortization of below-market lease intangible liabilities. Such GAAP adjustments and other rental revenue such as expense recovery revenue are included in the line item, referred to as “other rental revenue.”
(2) Includes equity-in-earnings from an unconsolidated joint venture of approximately $396,000 and $551,000 for the three months ended June 30, 2010 and 2009, respectively.
(3) For a discussion as to why we view net operating income to be an appropriate supplemental performance measure, refer to “Net Operating Income” discussed above.

Rental Revenue

Rental revenue for the three months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to our acquisition of 36 operating real properties subsequent to March 31, 2009. As of June 30, 2010, occupancy of our real property portfolio was approximately 95.3%. This compares to occupancy as of December 31, 2009 and June 30, 2009 of approximately 93.1% and 94.1%, respectively.

 

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Same store base rental revenue decreased for the three months ended June 30, 2010 compared to the same period in 2009. This decrease was primarily due to a decline in the occupancy of our same store portfolio of assets. As of June 30, 2010 and 2009, occupancy of our same store portfolio was approximately 91.2% and 94.0%, respectively.

Same store other rental revenue decreased for the three months ended June 30, 2010 compared to the same period in 2009. This decrease was primarily attributable to a decrease in occupancy and operating expenses, causing recovery revenue for operating expenses to decline.

Debt Related Income

Debt related income for the three months ended June 30, 2010 increased compared to the same period in 2009. The increase is primarily attributable to our investment of $82.1 million in debt related investments subsequent to March 31, 2009. This was partially offset by a disruption in interest payment from one of our mezzanine debt investments and the repayment of our preferred equity debt related investment of approximately $17.4 million, which was accounted for as an investment in unconsolidated joint venture.

Securities Income

Income from our preferred equity securities portfolio decreased for the three months ended June 30, 2010 compared to the same period in 2009 due to the disposition of approximately 77% (based on the amount invested) of our preferred equity securities portfolio during the three months ended June 30, 2010.

During the three months ended June 30, 2010, nine of our CRE-CDO securities suspended their interest payments resulting in a decrease in annualized payments of approximately $3.5 million based on the LIBOR rate as of June 30, 2010.

Rental Expenses

Rental expenses for the three months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to our acquisition of 36 operating real properties subsequent to March 31, 2009.

Same store rental expenses decreased for the three months ended June 30, 2010 as compared to the same period in 2009, due primarily to decreases in repair and maintenance expense, insurance expense and utilities expense, partially offset by an increase in bad debt expense.

Other Operating Expenses

 

   

Depreciation and Amortization Expens e: Depreciation and amortization expense for the three months ended June 30, 2010 increased compared to the same period in 2009, primarily due to our acquisition of 36 operating real properties subsequent to March 31, 2009.

 

   

General and Administrative Expense s: General and administrative expenses for the three months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to accounting and legal fees and other general overhead expenses attributable to our overall growth in assets and shareholders.

 

   

Asset Management Fees, Related Party : Asset management fees paid to our Advisor for the three months ended June 30, 2010 increased compared to the same period in 2009. This increase resulted from additional investments held during the three months ended June 30, 2010 compared to the same period in 2009. This increase was primarily attributable to our acquisition of 36 additional operating real properties and three debt investments subsequent to March 31, 2009.

 

   

Acquisition-Related Expenses: Acquisition-related expenses for the three months ended June 30, 2010 increased compared to the same period in 2009 primarily as a result of the acquisition of the NOIP Portfolio.

Other Income (Expenses)

 

   

Interest and Other Income: Interest and other income for the three months ended June 30, 2010 decreased compared to the same period in 2009. This decrease is attributable to the decrease in our outstanding cash balances and lower average yields on our floating-rate, interest-bearing bank accounts and money market mutual fund investments. The weighted average interest rate for which our cash balances earned interest income was 0.00% and 0.46% as of June 30, 2010 and 2009, respectively.

 

   

Interest Expense: Interest expense for the three months ended June 30, 2010 increased compared to the same period in 2009. This increase resulted primarily from additional mortgage note financing we assumed or incurred subsequent to March 31, 2009, partially offset by a general decline in the one-month LIBOR rate, which impacts interest expense on floating-rate debt obligations, and the partial repayment of our other secured borrowings. The following table further describes our interest expense by debt obligation, including amortization of loan cost, amortization of other comprehensive income related to our hedging activity and related discounts and premiums, for the three months ended June 30, 2010 and 2009 (amounts in thousands).

 

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     For the Three Months Ended June 30,
Debt Obligation    2010    2009

Mortgage notes

   $ 14,039    $ 12,744

Financing obligations

     1,672      1,745

Other secured borrowings

     57      62
             

Total interest expense

   $ 15,768    $ 14,551
             

 

   

Loss on Derivatives: Loss on derivatives for the three months ended June 30, 2010 decreased compared to the same period in 2009. During the three months ended June 30, 2009 we determined that it was no longer probable that previously forecasted issuances of fixed-rate debt associated with certain of our forward starting swaps would be issued within the timeframe specified in the corresponding hedge designation memorandum. As a result of these discontinuances of this cash flow hedges, we recognized losses on derivatives of approximately $8.6 million for the three months ended June 30, 2009. During the three months ended June 30, 2010, we recognized a loss on derivatives that was attributable to the change in fair value of an interest rate cap that was not designated as a hedge for accounting purposes.

 

   

Gain on Disposition of Securities: During the three months ended June 30, 2010, we initiated a disposition strategy with regards to our preferred equity securities portfolio. We disposed of the majority of our preferred equity securities for net proceeds of approximately $58.4 million. These disposed securities had an accounting cost basis of approximately $26.1 million, resulting in a gain of approximately $32.3 million.

 

   

Other-than-Temporary Impairment on Securities: During the three months ended June 30, 2010, we recorded net other-than-temporary impairment charges related to 11 of our CMBS and CRE-CDO securities. During the three months ended June 30, 2009, we recorded net other-than-temporary impairment charges related to 14 of our CMBS and CRE-CDO securities. See Note 4 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion of this charge.

 

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Six Months Ended June 30, 2010 Compared to the Six Months Ended June 30, 2009

For the six months ended June 30, 2010 and 2009, we had net income of approximately $941,000 and a net loss of approximately $19.8 million, respectively. Our results of operations for the six months ended June 30, 2010 was substantially different than our results for the same period in 2009, primarily as a result of (i) the gain on disposition of certain of our real estate securities during the current year period, (ii) increased operating revenue as the result of investment activity and (iii) a loss on derivatives in the prior year period. This was partially offset by acquisition costs in the current year period that related to our acquisition of the NOIP Portfolio.

 

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The following unaudited table illustrates the changes in rental revenues, rental expenses, net operating income, other income and other expenses for the six months ended June 30, 2010 compared to the same period in 2009. Our same store portfolio includes all operating properties that we owned for the entirety of both the current and prior year reporting periods. The same store portfolio includes 74 properties acquired prior to January 1, 2009, comprising approximately 12.1 million square feet. A discussion of these changes follows the table (in thousands).

 

     For the Six Months Ended June 30,  
     2010     2009     $ Change  

REVENUE:

      

Base rental revenue-same store (1)

   $ 48,097      $ 48,800      $ (703

Other rental revenue- same store

     14,529        16,978        (2,449
                        

Total rental revenue-same store

     62,626        65,778        (3,152

Rental revenue-2010/2009 acquisitions

     17,023        4,134        12,889   
                        

Total rental revenue

     79,649        69,912        9,737   

Debt related income (2)

     8,080        4,468        3,612   

Securities income

     2,205        5,130        (2,925
                        

Total Revenue

     89,934        79,510        10,424   

Rental Expenses

      

Same store

     16,039        16,994        (955

2010/2009 acquisitions

     5,145        1,099        4,046   
                        

Total rental expenses

     21,184        18,093        3,091   

Net Operating Income (3) 

      

Real property - same store

     46,587        48,784        (2,197

Real property - 2010/2009 acquisitions

     11,878        3,035        8,843   

Debt related income

     8,080        4,468        3,612   

Securities income

     2,205        5,130        (2,925
                        

Total net operating income

     68,750        61,417        7,333   

EXPENSES:

      

Real estate depreciation and amortization expense

     31,081        28,989        2,092   

General and administrative expenses

     3,101        2,497        604   

Asset management fees, related party

     7,957        6,131        1,826   

Acquisition-related expenses

     19,084        3,776        15,308   
                        

Total Operating Expenses

     61,223        41,393        19,830   
      

Other Income (Expenses):

      

Interest and other income

     245        2,101        (1,856

Interest expense

     (30,620     (27,186     (3,434

Loss on derivatives

     (112     (8,012     7,900   

Gain on disposition of securities

     32,272        —          32,272   

Other-than-temporary impairment on securities

     (5,387     (6,678     1,291   

Provision for loss on debt related investments

     (2,984     —          (2,984
                        

Total Other Income (Expense)

     (6,586     (39,775     33,189   
                        

Net income (loss)

     941        (19,751     20,692   
                        

 

(1) Base rental revenue represents contractual base rental revenue earned by us from our tenants and does not include the impact of certain GAAP adjustments to rental revenue, such as straight-line rent adjustments, amortization of above-market intangible lease assets or the amortization of below-market lease intangible liabilities. Such GAAP adjustments and other rental revenue such as expense recovery revenue are included in the line item, referred to as “other rental revenue.”
(2) Includes equity-in-earnings from an unconsolidated joint venture of approximately $941,000 and $1.1 million for of the six months ended June 30, 2010 and 2009, respectively.
(3) For a discussion as to why we view net operating income to be an appropriate supplemental performance measure, refer to “Net Operating Income” discussed above.

 

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Rental Revenue

Rental revenue for the six months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to our acquisition of 37 operating real properties subsequent to December 31, 2008.

Same store base rental revenue decreased for the six months ended June 30, 2010 compared to the same period in 2009. This decrease was primarily due to a decline in the occupancy of our same store portfolio of assets.

Same store other rental revenue decreased for the six months ended June 30, 2010 compared to the same period in 2009. This decrease was primarily attributable to a decrease in occupancy and operating expenses, causing recovery revenue for operating expenses to decline.

Debt Related Income

Debt related income for the six months ended June 30, 2010 increased compared to the same period in 2009. The increase is primarily attributable to our investment of $82.1 million in debt related investments subsequent to December 31, 2008. This was partially offset by a disruption in interest payment from one of our mezzanine debt investments and the repayment of our preferred equity debt related investment of approximately $17.4 million, which was accounted for as an investment in unconsolidated joint venture.

Securities Income

Income from our preferred equity securities portfolio decreased for the six months ended June 30, 2010 compared to the same period in 2009 due to the disposition of approximately 77% (based on the amount invested) of our preferred equity securities portfolio during the six months ended June 30, 2010.

During the six months ended June 30, 2010, 11 of our CRE-CDO securities suspended their interest payments resulting in a decrease in annualized payments of approximately $4.4 million based on the LIBOR rate as of June 30, 2010.

Rental Expenses

Rental expenses for the six months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to our acquisition of 37 operating real properties subsequent to December 31, 2008.

Same store rental expenses decreased for the six months ended June 30, 2010 as compared to the same period in 2009, due primarily to decreases in repair and maintenance expense, insurance expense and utilities expense, partially offset by an increase in bad debt expense.

Other Operating Expenses

 

   

Depreciation and Amortization Expens e: Depreciation and amortization expense for the six months ended June 30, 2010 increased compared to the same period in 2009, primarily due to our acquisition of 37 operating real properties subsequent to December 31, 2008.

 

   

General and Administrative Expense s: General and administrative expenses for the six months ended June 30, 2010 increased compared to the same period in 2009. This increase is primarily attributable to accounting and legal fees and other general overhead expenses attributable to our overall growth in assets and shareholders.

 

   

Asset Management Fees, Related Party : Asset management fees paid to our Advisor for the six months ended June 30, 2010 increased compared to the same period in 2009. This increase resulted from additional investments held during the three months ended June 30, 2010 compared to the same period in 2009. This increase was primarily attributable to our acquisition of 37 additional operating real properties and three debt investments subsequent to December 31, 2008.

 

   

Acquisition-Related Expenses: Acquisition-related expenses for the six months ended June 30, 2010 increased compared to the same period in 2009 primarily as a result of the acquisition of the NOIP Portfolio.

 

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Other Income (Expenses)

 

   

Interest and Other Income: Interest and other income for the six months ended June 30, 2010 decreased compared to the same period in 2009. This decrease is attributable to the decrease in our outstanding cash balances and lower average yields on our floating-rate, interest-bearing bank accounts and money market mutual fund investments.

 

   

Interest Expense: Interest expense for the six months ended June 30, 2010 increased compared to the same period in 2009. This increase resulted primarily from additional mortgage note financing we assumed or incurred subsequent to March 31, 2009, partially offset by a general decline in the one-month LIBOR rate, which impacts interest expense on floating-rate debt obligations, and the partial repayment of our other secured borrowings. The following table further describes our interest expense by debt obligation, including amortization of loan cost, amortization of other comprehensive income related to our hedging activity and related discounts and premiums, for the six months ended June 30, 2010 and 2009 (amounts in thousands).

 

     For the Six Months Ended June 30,
     2010    2009

Debt Obligation

     

Mortgage notes

   $ 27,076    $ 23,595

Financing obligations

     3,454      3,455

Other secured borrowings

     90      136
             

Total interest expense

   $ 30,620    $ 27,186
             

 

   

Loss on Derivatives: Loss on derivatives for the six months ended June 30, 2010 decreased compared to the same period in 2009. During the six months ended June 30, 2009, we determined that it was no longer probable that previously forecasted issuances of fixed-rate debt associated with certain of our forward starting swaps would be issued within the timeframe specified in the corresponding hedge designation memorandum. As a result of these discontinuances of these cash flow hedges, we recognized losses on derivatives of approximately $8.6 million for the six months ended June 30, 2009. In addition, during the six months ended June 30, 2009, we recognized a net gain of approximately $565,000 due a change in forecasted dates of debt issuances. During the three months ended June 30, 2010, we recognized a loss on derivatives that was attributable to the change in fair value of an interest rate cap that was not designated as a hedge for accounting purposes.

 

   

Gain on Disposition of Securities: During the three months ended June 30, 2010, we initiated a disposition strategy with regards to our preferred equity securities portfolio. We disposed of all or part of 23 of our 24 preferred equity securities for net proceeds of approximately $58.4 million. These disposed securities had an accounting cost basis approximately $26.1 million, resulting in a gain of approximately $32.3 million.

 

   

Other-than-Temporary Impairment on Securities: During the six months ended June 30, 2010, we recorded net other-than-temporary impairment charges related to 11 of our CMBS and CRE-CDO securities. During the six months ended June 30, 2009 we recorded net other-than-temporary impairment charges related to 14 of our CMBS and CRE-CDO securities. See Note 4 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion of this charge.

 

   

Provision for Loss on Debt Related Investments: During the six months ended June 30, 2010, we recorded a provision for loan loss related to one of our B-note debt related investments related to an office property located in the San Diego, California market. This provision represented a complete loss of our carrying amount of this investment due to our assessment that future cash flows from this investment were highly uncertain and that our underlying collateral position had no fair value.

Liquidity and Capital Resources

Liquidity Outlook

For the past several years, we have maintained a significant cash balance as a result of our successful capital raising efforts and patient capital deployment. However, with the closing of the NOIP Portfolio, we have substantially deployed our capital, although we will continue to invest opportunistically, and have substantially reduced our cash balance to approximately $162.6 million. We believe our existing cash balance, cash from operations, additional proceeds from our DRIP Plan and prospective debt issuances and assumptions will be sufficient to meet our liquidity and capital needs for the foreseeable future, including the next 12 months. Our capital requirements over the next 12 months are anticipated to include, but are not limited to, operating expenses, distribution payments, redemption payments, acquisitions of real property, debt related investments and real estate securities and debt service payments, including debt maturities of approximately $66.2 million, all of which are subject to certain extension options.

 

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As of June 30, 2010, we had approximately $162.6 million of cash compared to $514.8 million as of December 31, 2009. The following discussion summarizes the sources and uses of our cash during the six months ended June 30, 2010 that resulted in the net cash decrease of approximately $352.2 million.

Operating Activities

Net cash provided by operating activities was approximately $14.5 million for the six months ended June 30, 2010, which represents a decrease of approximately $11.9 million compared to net cash provided by operating activities of approximately $26.4 million for the same period in 2009. This was primarily due to acquisition costs attributable to our acquisition of the NOIP Portfolio, partially offset by income from other investment activity.

Lease Expirations

Our primary source of funding for our property-level operating expenses and debt service payments is rent collected pursuant to our tenant leases. Our properties are generally leased to tenants for terms ranging from three to 12 years. As of June 30, 2010, the weighted average remaining term of our leases was approximately 9.0 years based on annualized base rent and 6.9 years based on leased square footage. The following is a schedule of expiring leases for our consolidated operating properties by annual minimum rents as of June 30, 2010 and assuming no exercise of lease renewal options (amounts in thousands).

 

Year

         Lease Expirations  
     Annualized
Base Rent (1)
   %     Square Feet    %  
2010 (2)      $ 3,958    1.7   462    2.0
2011        14,728    6.3   1,732    7.5
2012        21,482    9.2   2,048    8.9
2013        14,983    6.4   1,181    5.1
2014        18,275    7.8   2,243    9.7
2015        16,606    7.1   1,655    7.2
2016        22,694    9.7   1,783    7.7
2017        50,460    21.6   3,431    14.9
2018        4,658    2.0   1,045    4.5
2019        13,184    5.7   657    2.9
Thereafter        52,157    22.5   6,795    29.6
                          
Total      $ 233,185    100.0   23,032    100.0
                          

 

(1) Annualized base rent represents the average annual rent of leases in place as of June 30, 2010, based on their respective noncancellable terms, as of June 30, 2010.
(2) Amount presented is for the remainder of 2010 and includes leases that are on a month-to-month basis.

Investing Activities

Net cash used in investing activities increased approximately $1.2 billion to approximately $1.3 billion for the six months ended June 30, 2010 from approximately $91.3 million for the same period in 2009.

National Office and Industrial Portfolio

In June 2010, we completed the acquisition of the NOIP Portfolio, a portfolio of 32 office and industrial properties or interests therein, from several subsidiaries of the Sellers. The aggregate purchase price of the NOIP Portfolio was approximately $1.35 billion. See the discussion in Note 3 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion of our acquisition of the NOIP Portfolio.

Debt Investment Activity

During the six months ended June 30, 2010, we originated a $13.2 million senior mortgage loan secured by an office property located in Washington, DC market (the “Dulles Creek Loan”). See the discussion in Note 5 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion of this debt investment.

In addition, we received full and complete repayment of our debt investment structured as a redeemable preferred equity investment of approximately $17.4 million. See the discussion in Note 5 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion of this repayment.

 

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Financing Activities

Net cash from financing activities was approximately $912.5 million for the six months ended June 30, 2010 primarily due to proceeds received from mortgage borrowings and other secured borrowings, including mortgage note borrowings issued in conjunction with our acquisition of the NOIP Portfolio. See footnote 6 for a discussion of borrowings related to the NOIP Portfolio. Net cash provided by financing activities was approximately $131.3 million for the six months ended June 30, 2009 mostly due to approximately $136.3 million in proceeds from sale of common stock and approximately $52.3 million in mortgage note proceeds, offset by distributions of approximately $22.0 million.

Public Offerings

We terminated our primary public offering in 2009. We have and will continue to offer shares of common stock through the DRIP Plan. The amount raised under the DRIP Plan increased by approximately $934,000 to approximately $27.1 million for the six months ended June 30, 2010 from approximately $26.2 million for the same period in 2009.

Debt Financings

See the discussion in Note 6 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q for further discussion regarding our debt financing activity during the six months ended June 30, 2010 and a schedule that sets forth contractual scheduled maturities of our mortgage notes and related details.

Distributions

Distributions declared payable to common stockholders increased approximately $5.2 million to approximately $55.2 million for the six months ended June 30, 2010 from approximately $50.0 million for the same period in 2009. Such distributions were paid following the respective quarters for which they were declared and approximately $28.9 million and $23.4 million, respectively, were paid in cash and approximately $26.3 million and $26.6 million, respectively, were reinvested in shares of our common stock pursuant to the DRIP Plan. Proceeds from the DRIP Plan have been and, during the near-term, are expected to be used to fund our share redemption program as described further below.

        For the six months ended June 30, 2010 and 2009, we reported approximately $14.5 million and $26.4 million, respectively, of cash provided by our operating activities. In accordance with ASC Topic 805, which became effective for the year ended December 31, 2009, this amount was reduced by approximately $19.1 million and $3.8 million of acquisition-related expenses, for the six months ended June 30, 2010 and 2009, respectively, which were funded from the net proceeds received from our public offerings. As a result, the distributions declared payable to common stockholders for the six months ended June 30, 2010 and 2009, (excluding the impact of ASC Topic 805 as described above) were funded with approximately $33.6 million and $30.2 million, respectively, from our operating activities, and the remaining amounts of approximately $21.6 million and $19.8 million, respectively, were funded from financing activities. Our long-term goal is to fund the payment of quarterly distributions to investors entirely from our operations. There can be no assurance that we will achieve this goal.

 

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Redemptions

During the six months ended June 30, 2010 and 2009, we redeemed approximately 2.9 million and approximately 2.4 million shares of common stock, respectively, pursuant to our share redemptions program (the “Program”). As a result, proceeds redeemed increased approximately $6.0 million to $26.9 million during the six months ended June 30, 2010 from $20.9 million for the same period in 2009. See “Item 2. Unregistered Sales of Equity Securities and Use of Proceeds” of this Quarterly Report on Form 10-Q for a description of the Program. We redeemed approximately 4,400 OP Units from our OP Unit holders for approximately $44,000 during the six months ended June 30, 2010. In addition to the above-mentioned redemptions, we also redeemed approximately 245,000 OP Units from our OP Unit holders for approximately $2.5 million during the same period 2009.

Off-Balance Sheet Arrangements

As of June 30, 2010, we had no material off-balance sheet arrangements that had or are reasonably likely to have a current or future effect on our financial condition, results of operations, liquidity or capital resources. There are no lines of credit, side agreements, or any other derivative financial instruments related to or between our unconsolidated joint venture and us, and we believe we have no material exposure to financial guarantees.

We have contractual obligations to related parties for asset management services. Fees for these services are based upon assets owned and revenues received during future periods, and as a result, future amounts cannot be determined at this time.

Assets and Liabilities Measured at Fair Value

Fair Value Estimates of Investments in Real Estate Securities

As of June 30, 2010, our real estate securities were valued in two categories, comprised of (i) preferred equity securities and (ii) CMBS and CRE-CDOs. Our valuation procedures for each of the two categories are applied to each specific investment within their respective categories.

Preferred Equity Securities

The valuation of our investments in preferred equity securities is determined using exchange listed prices in an active market. As such, preferred equity securities fall within Level 1 of the fair value hierarchy, see Note 9 in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q. Our investments in preferred equity securities had a fair value of $14.2 million and $63.9 million, which represented less that 1% and approximately 3.6% of total net investments as of June 30, 2010 and December 31, 2009, respectively.

CMBS and CRE-CDOs

We estimate the fair value of our CMBS and CRE-CDO securities using a combination of observable market information and unobservable market assumptions. Observable market information used in these fair market valuations include benchmark interest rates, interest rate curves, credit market indexes and swap curves. Unobservable market assumptions used in the determination of the fair market valuations of our CMBS and CRE-CDO investments include market assumptions related to discount rates, default rates, prepayment rates, reviews of trustee or investor reports and nonbinding broker quotes and pricing services in what is currently an inactive market. Additionally, we consider security-specific characteristics in determining the fair values of our CMBS and CRE-CDO investments, which include consideration of credit enhancements of the underlying collateral’s average default rates, the average delinquency rate and loan-to-value, and several other characteristics. As a result, both Level 2 and Level 3 inputs are used in arriving at the valuation of our investments in CMBS and CRE-CDOs. We consider the Level 3 inputs used in determining the fair value of our investments in CMBS and CRE-CDO securities to be significant. As such, all investments in CMBS and CRE-CDO securities fall under the Level 3 category of the fair value hierarchy as of June 30, 2010. No investments in CMBS and CRE-CDO securities were transferred in or out of the Level 3 category of the fair value hierarchy during the six months ended June 30, 2010.

Our CMBS and CRE-CDO investments had a fair value of $990,000 million and $8.8 million, which represented less than 1% of our total net investments as of June 30, 2010 and December 31, 2009. For the six months ended June 30, 2010, we recorded an other-than-temporary impairment charge of $5.4 million related to our CMBS and CRE-CDO securities. For additional detail regarding this other-than-temporary impairment charge, see Note 4 to our financial statements included in “Item 1. Financial Statements” of this Quarterly Report on Form 10-Q.

 

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Subsequent Events

Potential Disposition of Real Properties Included in the NOIP Portfolio

In August 2010, we entered into an agreement to sell a portfolio of six industrial properties comprising approximately 4.7 million net rentable square feet that we had acquired as part of the NOIP Portfolio that are 100% leased to Goodyear Tire and Rubber Company (the “Goodyear Portfolio”). Pursuant to this agreement, we anticipate selling the Goodyear Portfolio for a purchase price of approximately $172.5 million. Furthermore, we anticipate that certain proceeds from the disposition of the Goodyear Portfolio will be used to repay approximately $165.7 million of the outstanding principal balance of the NOIP Floating Rate Loan and approximately $3.4 million of the outstanding principal balance of the mezzanine loans related to the NOIP Portfolio. Specifically, we expect that the approximate $3.4 million repayment will be related to the $66.2 million tranche of the mezzanine loan financing associated with the NOIP Portfolio. This tranche matures in June 2013 and bears interest at 10.00%. We currently expect that we will dispose of the Goodyear Portfolio in the third quarter of 2010. However, there can be no assurance that the disposition and related repayments of borrowings will be consummated on the terms described above or at all.

Partial Repayment of Mezzanine Loan

In July 2010, we repaid the Sellers of the NOIP Portfolio $25.0 million of the interest only, $66.2 million tranche of the mezzanine loan financing associated with the NOIP Portfolio. This tranche matures in June 2013 and bears interest at 10.00%.

Northrop Litigation

On July 14, 2010, Northrop Grumman Systems Corporation (“Northrop”) filed a complaint in the Circuit Court of Fairfax County, Virginia against iStar NG, LP, TRT Acquisitions, LLC, TRT NOIP Colshire - McLean LLC, and Dividend Capital Total Realty Trust Inc. (together, the “Dividend Capital Defendants”) and iStar Financial Inc. (“iStar Financial” and, together with Dividend Capital Defendants, the “Defendants”). Northrop’s Complaint pertains to a real estate project containing two commercial office buildings and a parking garage located at 7555-7575 Colshire Drive in McLean, Virginia (the “Project”). TRT NOIP Colshire - McLean LLC, a wholly-owned subsidiary of Dividend Capital Total Realty Trust Inc., acquired iStar NG, LP as part of the National Office and Industrial Portfolio acquired from several subsidiaries of iStar Financial on June 25, 2010. Northrop, a holder of a leasehold interest in the Project, alleges that iStar Financial and the Dividend Capital Defendants knowingly completed the sale of the Project (rather than a sale of the owner of the Project, iStar NG, LP). Northrop’s Complaint claims that the alleged sale of the Project violated Northrop’s right of first offer (“ROFO”) contained in the relevant deed of lease. Northrop’s Complaint seeks specific performance of the ROFO, other injunctive relief, compensatory damages in the amount of $250 million, $350,000 in punitive damages, treble damages under the Virginia Business Conspiracy Statute, costs, and attorneys’ fees. On August 10, 2010, Defendants filed with the Fairfax County Circuit Court papers seeking dismissal of Northrop’s Complaint as a matter of law. In addition to defending Northrop’s Complaint generally and asserting counterclaims, the Dividend Capital Defendants have obtained indemnities from iStar Financial and insurance coverage that are subject to certain terms, conditions and limitations.

Inflation

Most of our leases either provide for separate real estate tax and operating expense escalations over a base amount or either direct or indirect payment of these expenses by the tenant. In addition, many of our leases provide for fixed base rent increases or indexed rent increases. We believe that inflationary increases in costs may be at least partially offset by the contractual rent increases and operating expense escalations in our leases. To date, we believe that inflation has not had a material impact to our operations or overall liquidity.

Critical Accounting Policies

Principles of Consolidation

Due to our control of our Operating Partnership through our sole general partnership interest and the limited rights of the limited partners, we consolidate our Operating Partnership and limited partner interests not held by us, which are reflected as noncontrolling interests in the accompanying financial statements. All significant intercompany accounts and transactions have been eliminated in consolidation.

Our financial statements also include the accounts of our consolidated subsidiaries and joint ventures through which we are the primary beneficiary, when such subsidiaries and joint ventures are variable interest entities, or through which we have a controlling interest. In determining whether we have a controlling interest in a joint venture and the requirement to consolidate the accounts of that entity, we consider factors such as ownership interest, board representation, management representation, authority to make decisions, and contractual and substantive participating rights of the partners/members as well as whether the entity is a variable interest entity in which we have the power to direct the activities that most significantly impact the entity’s economic performance and the obligation to absorb losses of the entity that could potentially be significant to the entity or the right to receive benefits from the entity that could potentially be significant to the entity.

 

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Table of Contents

Judgments made by us with respect to our level of influence or control of an entity and whether we are the primary beneficiary of a variable interest entity involve consideration of various factors, including the form of our ownership interest, the size of our investment (including loans) and our ability to direct the activities of the entity. Our ability to correctly assess our influence or control over an entity affects the presentation of these investments in our financial statements and, consequently, our financial position and specific items in our results of operations that are used by our stockholders, lenders and others in their evaluation of us. As of June 30, 2010 and December 31, 2009, we consolidated approximately $799.2 million and $800.4 million, respectively, in real property investments, before accumulated depreciation and amortization of approximately $107.0 million and $92.5 million, respectively, and approximately $492.2 million and $496.2 million, respectively, in mortgage note borrowings associated with our consolidated variable interest entities. The maximum risk of loss related to our investment in these unconsolidated variable interest entities is limited to our recorded investments in such entities. The creditors of the consolidated variable interest entities do not have recourse to our general credit.

Generally, we consolidate real estate partnerships and other entities that are not variable interest entities when we own, directly or indirectly, a majority voting interest in the entity.

New Accounting Pronouncements

We adopted a new accounting standard effective January 1, 2010 that revised the guidance on how a reporting entity evaluates whether an entity is a variable interest entity and which entity is considered the primary beneficiary of a variable interest entity and is therefore required to consolidate such variable interest entity. This accounting standard requires assessments at each reporting period of which party within the variable interest entity is considered the primary beneficiary and requires a number of new disclosures related to variable interest entities. Upon our adoption of this accounting standard, we reconsidered our previous consolidation conclusions for all entities with which we are involved pursuant to this accounting pronouncement. There was no impact to our financial position or results of operations as a result of our adoption of this accounting standard.

 

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Table of Contents
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Market risk is the adverse effect on the value of assets and liabilities that results from a change in the applicable market resulting from a variety of factors such as perceived risk, interest rate changes, inflation and overall general economic changes. Accordingly, we manage our market risk by matching projected cash inflows from operating, investing and financing activities with projected cash outflows for debt service, acquisitions, capital expenditures, distributions to stockholders and unit holders, and other cash requirements. Our investments in real estate securities and debt related investments are our financial instruments that are most significantly and directly impacted by changes in their respective market conditions. In addition, our outstanding borrowings are also directly impacted by changes in market conditions. This impact is largely mitigated by the fact that the majority of our outstanding borrowings have fixed interest rates, which minimize our exposure to the risk that fluctuating interest rates may pose to our operating results and liquidity.

As of June 30, 2010, we had approximately $613.7 million of variable rate borrowings outstanding indexed to LIBOR rates. If the prevailing market interest rates relevant to our remaining variable rate borrowings were to increase 10%, we estimate that our quarterly interest expense would increase by approximately $42,000, based on our outstanding floating-rate debt as of June 30, 2010.

We may seek to limit the impact of interest rate changes on earnings and cash flows and to lower our overall borrowing costs by selectively utilizing derivative instruments to hedge exposures to changes in interest rates on loans secured by our assets. We maintain risk management control systems to monitor interest rate cash flow risk attributable to both our outstanding and forecasted debt obligations as well as our potential offsetting hedge positions. While this hedging strategy is designed to minimize the impact on our net income (loss) and funds from operations from changes in interest rates, the overall returns on our investments may be reduced. Our board of directors has established policies and procedures regarding our use of derivative instruments for hedging or other purposes.

In addition to the above described risks, we are subject to additional credit risk. Credit risk refers to the ability of each individual borrower under our debt related investments or issuer of our real estate securities to make required interest and principal payments on the scheduled due dates. We seek to reduce credit risk by actively monitoring our debt related investments and real estate securities portfolio and the underlying credit quality of our holdings. In the event of a significant rising interest rate environment and/or economic downturn, loan and collateral defaults may continue to increase and result in further credit losses that would continue to, or more severely, adversely affect our liquidity and operating results. As described elsewhere in this Quarterly Report on Form 10-Q, adverse market and credit conditions have resulted in our recording of other-than-temporary impairment in certain securities and provisions for loan losses related to our debt related investments.

 

ITEM 4. CONTROLS AND PROCEDURES

The Company’s management, with the participation of the Company’s President and Chief Financial Officer, has evaluated the effectiveness of the Company’s disclosure controls and procedures as of June 30, 2010. Based on that evaluation, the Company’s President and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective as of June 30, 2010. There were no material changes in the Company’s internal control over financial reporting during the three months ended June 30, 2010.

PART II. OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

        On July 14, 2010, Northrop Grumman Systems Corporation (“Northrop”) filed a complaint in the Circuit Court of Fairfax County, Virginia against iStar NG, LP, TRT Acquisitions, LLC, TRT NOIP Colshire - McLean LLC, and Dividend Capital Total Realty Trust Inc. (together, the “Dividend Capital Defendants”) and iStar Financial Inc. (“iStar Financial” and, together with Dividend Capital Defendants, the “Defendants”). Northrop’s Complaint pertains to a real estate project containing two commercial office buildings and a parking garage located at 7555-7575 Colshire Drive in McLean, Virginia (the “Project”). TRT NOIP Colshire - McLean LLC, a wholly-owned subsidiary of Dividend Capital Total Realty Trust Inc., acquired iStar NG, LP as part of the National Office and Industrial Portfolio acquired from several subsidiaries of iStar Financial on June 25, 2010. Northrop, a holder of a leasehold interest in the Project, alleges that iStar Financial and the Dividend Capital Defendants knowingly completed the sale of the Project (rather than a sale of the owner of the Project, iStar NG, LP). Northrop’s Complaint claims that the alleged sale of the Project violated Northrop’s right of first offer (“ROFO”) contained in the relevant deed of lease. Northrop’s Complaint seeks specific performance of the ROFO, other injunctive relief, compensatory damages in the amount of $250 million, $350,000 in punitive damages, treble damages under the Virginia Business Conspiracy Statute, costs, and attorneys’ fees. On August 10, 2010, Defendants filed with the Fairfax County Circuit Court papers seeking dismissal of Northrop’s Complaint as a matter of law. In addition to defending Northrop’s Complaint generally and asserting counterclaims, the Dividend Capital Defendants have obtained indemnities from iStar Financial and insurance coverage that are subject to certain terms, conditions and limitations.

 

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ITEM 1A. RISK FACTORS

In addition to the risk factors in Part I of our Annual Report on Form 10-K for the year ended December 31, 2009 filed with the Commission on March 23, 2010 the Company is also subject to the following risks:

We or our Advisor may fail to adapt management and operational systems to integrate the NOIP Portfolio without unanticipated disruption or expense, and our acquisition of the NOIP Portfolio may subject us to unanticipated liabilities.

Our acquisition of the NOIP Portfolio was substantially larger than any of our previous acquisitions and nearly doubled the value and size of our investments in real property. As a result, the acquisition of the NOIP Portfolio has and will continue to require significant adaptation of related asset management, administrative, accounting and operational systems, and the potential need to hire and retain sufficient staff to integrate the operations included in the NOIP Portfolio. The integration of the NOIP Portfolio has and will continue to require time, effort, attention and dedication of our Advisor’s resources and may distract our management and our Advisor in unpredictable ways from their other responsibilities. Our failure to integrate the NOIP Portfolio without undue disruption or cost could have a material adverse effect on our results of operations and financial. In addition, the acquisition of the NOIP Portfolio may subject us to liabilities related to the properties we acquire, some of which may be unknown. For example, Northrop Grumman Systems Corporation filed a complaint naming us as a defendant pertaining to two commercial office buildings and a parking garage that were part of the National Office and Industrial Portfolio. See Part II, Item 1 “Legal Proceedings” of this Form 10-Q.

The acquisition of the NOIP Portfolio has caused us to use the majority of our cash on hand and significantly increased our level of indebtedness, which may have an adverse impact on our liquidity and our ability to obtain additional financing at reasonable terms.

We used the majority of our cash on hand and incurred significant indebtedness to acquire the NOIP Portfolio, resulting in significantly increased debt levels. The use of debt to fund the acquisition of the NOIP Portfolio has reduced our liquidity and caused us to place more reliance on cash flow from operations and other sources for our liquidity. If our cash flow from operations is not sufficient for our needs, our business could be adversely affected and could ultimately affect our ability to make distributions to our stockholders. If we are required to seek additional external financing to support our need for cash to fund our operating expenses and other obligations, we may not have access to financing on terms that are acceptable to us, or at all. Alternatively, we may feel compelled to access additional financing on terms that are dilutive to existing holders of our common stock or that include covenants that restrict our business, or both. If the recent lack of liquidity in credit markets persists into the future, our ability to obtain debt financing for our operating expenses and other obligations may be impaired.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

Share Redemption Program

We have established a share redemption program (as amended from time to time, the “Program”) that provides our stockholders with limited interim liquidity. The Program will be immediately terminated if our shares of common stock are listed on a national securities exchange, or if a secondary market in our common stock is otherwise established.

After our stockholders have held shares of our common stock for a minimum of one year, our Program may provide a limited opportunity for our stockholders to have their shares of common stock redeemed, subject to certain restrictions and limitations, at a price equal to or at a discount from the purchase price of the shares of our common stock being redeemed and the amount of the discount will vary based upon the length of time that our stockholders have held their shares of our common stock subject to redemption, as described in the following table.

 

Share Purchase Anniversary

   Redemption Price as  a
Percentage of Purchase Price
 

Less than 1 year

   No Redemption Allowed   

1 year

   92.5

2 years

   95.0

3 years

   97.5

4 years and longer

   100.0

 

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Table of Contents

In the event that a stockholder seeks to redeem all of their shares of our common stock, shares of our common stock purchased pursuant to our DRIP Plan may be excluded from the foregoing one-year holding period requirement at the discretion of the board of directors. If a stockholder has made more than one purchase of our common stock (other than through our DRIP Plan), the one-year holding period will be calculated separately with respect to each such purchase. In addition, for purposes of the one-year holding period, holders of OP Units who exchange their OP Units for shares of our common stock shall be deemed to have owned their shares as of the date they were issued their OP Units. Neither the one-year holding period nor the Redemption Caps (defined below) will apply in the event of the death of a stockholder. The board of directors reserves the right in its sole discretion at any time and from time to time to (i) waive the one-year holding period and either of the Redemption Caps in the event of disability (as such term is defined in the Code) of a stockholder, (ii) reject any request for redemption for any reason or no reason, or (iii) reduce the number of shares of our common stock allowed to be redeemed under the Program. If our board of directors waives the one-year holding period in the event of the disability of a stockholder, or if the redemption request is in connection with the death of a stockholder who has held their shares for less than one year, we will redeem such shares at the discounted amount listed in the above table for a stockholder who has held shares for one year. Furthermore, any shares redeemed in excess of the Quarterly Redemption Cap (defined below), as a result of the death or disability of a stockholder, will be included in calculating the following quarter’s redemption limitations. At any time we are engaged in an offering of shares of our common stock, the per share price for shares of our common stock redeemed under our Program will never be greater than the then-current offering price of our shares of our common stock sold in the primary offering.

We are not obligated to redeem shares of our common stock under the Program. We presently intend to limit the number of shares to be redeemed during any calendar quarter to the lesser of (i) one-quarter of five percent of the number of shares of common stock outstanding as of the date that is 12-months prior to the end of the current quarter and (ii) the aggregate number of shares sold pursuant to our DRIP Plan in the immediately preceding quarter, which amount may be less than the Aggregate Redemption Cap (defined below). The lesser of the preceding limitations is referred to as the (“Quarterly Redemption Cap”). Our board of directors retains the right, but is not obligated to, redeem additional shares if, in its sole discretion, it determines that it is in our best interest to do so, provided that we will not redeem during any consecutive 12-month period more than five percent of the number of shares of common stock outstanding at the beginning of such 12-month period (the “Aggregate Redemption Cap”, and together with the Quarterly Redemption Cap, the “Redemption Caps”), unless permitted to do so by applicable regulatory authorities. Although we presently intend to redeem shares pursuant to the above referenced methodology, to the extent that the aggregate proceeds received from the sale of shares pursuant to our DRIP Plan in any quarter are not sufficient to fund redemption requests, our board of directors may, in its sole discretion, choose to use other sources of funds to redeem shares of our common stock, up to the Aggregate Redemption Cap. Such sources of funds could include cash on hand, cash available from borrowings, cash from the sale of our shares pursuant to our DRIP Plan in other quarters, and cash from liquidations of securities investments, to the extent that such funds are not otherwise dedicated to a particular use, such as working capital, cash distributions to stockholders, debt repayment, purchases of real property, real estate-related securities, debt related investments or redemptions of OP Units. Our board of directors has no obligation to use other sources of funds to redeem shares of our common stock under any circumstances. The board of directors may in some circumstances, but is not obligated to, increase the Aggregate Redemption Cap, but may only do so in reliance on an applicable no-action letter issued by the Commission staff that would allow such an increase. There can be no assurance that the board of directors will increase either of the Redemption Caps at any time, nor can there be assurance that the board of directors will be able to obtain, if necessary, a no-action letter from the Commission. In any event, the number of shares of our common stock that we may redeem will be limited by the funds available from purchases pursuant to our DRIP Plan, cash on hand, cash available from borrowings and cash from liquidations of securities or debt related investments as of the end of the applicable quarter.

The board of directors may, in its sole discretion, amend, suspend, or terminate the Program at any time if it determines that the funds available to fund the Program are needed for other business or operational purposes or that amendment, suspension or termination of the Program is in the best interest of our stockholders. Any amendment, suspension or termination of the Program will not affect the rights of holders of OP Units to cause us to redeem their OP Units for, at our sole discretion, shares of our common stock, cash, or a combination of both pursuant to the Operating Partnership Agreement (the “OP Agreement”). In addition, the board of directors may determine to modify the Program to redeem shares at the then-current net asset value per share (provided that any offering will then also be conducted at net asset value per shares), as calculated in accordance with policies and procedures developed by our board of directors. If the board of directors decides to amend, suspend or terminate the Program, we will provide stockholders with no less than 30 days prior written notice. Therefore, stockholders may not have the opportunity to make a redemption request prior to any potential suspension, amendment, or termination of our Program.

We intend to redeem shares of our common stock quarterly under the Program. All requests for redemption must be made in writing and received by us at least 15 days prior to the end of the applicable quarter (the “Applicable Quarter End”).

Stockholders may also withdraw their redemption request by submitting a request in writing that is received by us at any time up to three business days prior to the Applicable Quarter End.

 

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Table of Contents

In connection with our quarterly redemptions, our affiliated stockholders will defer their redemption requests until all redemption requests by unaffiliated stockholders have been met. However, we cannot guarantee that the funds set aside for the Program will be sufficient to accommodate all requests made in any quarter. In the event that we do not have sufficient funds available to redeem all of the shares of our common stock for which redemption requests have been submitted in any quarter or the total amount of shares requested for redemption exceed the Quarterly Redemption Cap, we plan to redeem the shares of our common stock on a pro rata basis. In addition, we will redeem shares of our common stock in full that are presented for redemption in connection with the death and, if approved by the board of directors in its sole discretion, disability, of a stockholder, regardless of whether we redeem all other shares on a pro rata basis. Moreover, such determinations regarding our Program will not affect any determinations that may be made by the board of directors regarding requests by holders of OP Units for redemption of their OP Units pursuant to the OP Agreement.

We will determine whether to approve redemption requests no later than 30 days following the Applicable Quarter End, which we refer to as the “Redemption Determination Date.” No later than three business days following the Redemption Determination Date, we will pay the redemption price in cash for shares approved for redemption and/or, as necessary, will notify each stockholder in writing if the stockholder’s redemption request was not honored in whole or in part. The redemption request of a stockholder that is not honored in whole or in part will be deemed automatically withdrawn for such shares for which redemption was not approved, and any such stockholder may resubmit a request in a subsequent quarter. We will not retain redemption requests that are not honored in any particular quarter. The redemption request for such shares of our common stock will be deemed void and will not affect the rights of the holder of such shares of our common stock, including the right to receive distributions thereon. If a pro rata redemption would result in a stockholder owning less than half of the minimum purchase amount required under state law, we would redeem all of such stockholder’s shares of our common stock. If a pro rata redemption would result in a stockholder owning less than the minimum amount required under state law but at least half of such amount, we would not redeem any shares of our common stock that would take the stockholder’s holdings below the minimum threshold.

Shares of our common stock approved for redemption on the Redemption Determination Date will be redeemed by us under the Program effective as of the Applicable Quarter End and will return to the status of authorized, but unissued, shares of common stock. We will not resell such shares of common stock to the public unless they are first registered with the Commission under the Securities Act and under appropriate state securities laws or otherwise sold in compliance with such laws.

In aggregate, for the three months ended June 30, 2010, we redeemed approximately 1.5 million shares of common stock pursuant to the Program for approximately $14.1 million, as described further in the table below.

 

 

Month Ended

   Total Number of
Shares Redeemed
   Average Price per
Share
   Total Number of Shares
Purchased as Part of
Publicly Announced
Plans or Programs
   Maximum Number of
Shares that May Yet Be
Purchased Pursuant
to the Program (1)

April 30, 2010

   —      $ —      —      —  

May 31, 2010

   —        —      —      —  

June 30, 2010

   1,479,591      9.53    1,479,591    —  
                     

Total

   1,479,591    $ 9.53    1,479,591    1,030,542
                     

 

(1) This represents the number of shares that could be redeemed for the three months ended June 30, 2010 without exceeding our limitations discussed above.

 

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

None.

 

ITEM 4. REMOVED AND RESERVED

 

ITEM 5. OTHER INFORMATION

None.

 

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Table of Contents

 

ITEM 6. EXHIBITS

 

2.1    Purchase and Sale Agreement by and among iStar Financial Inc., the entities set forth therein and TRT Acquisitions LLC, dated May 3, 2010.*
2.1.1    First Amendment to Purchase and Sale Agreement by and among iStar Financial Inc., the entities set forth therein and TRT Acquisitions LLC, dated May 11, 2010.*
2.1.2    Second Amendment to Purchase and Sale Agreement by and among iStar Financial Inc., the entities set forth therein and TRT Acquisitions LLC, dated May 21, 2010.*
2.1.3    Third Amendment to Purchase and Sale Agreement by and among iStar Financial Inc., the entities set forth therein and TRT Acquisitions LLC, dated June 24, 2010.
2.1.4    Fourth Amendment to Purchase and Sale Agreement by and among iStar Financial Inc., the entities set forth therein and TRT Acquisitions LLC, dated June 25, 2010.*
2.2    Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar Harborside LLC and TRT Acquisitions LLC, dated May 3, 2010.*
2.2.1    First Amendment to Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar Harborside LLC and TRT Acquisitions LLC, dated May 11, 2010.*
2.2.2    Second Amendment to Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar Harborside LLC and TRT Acquisitions LLC, dated May 21, 2010.*
2.2.3    Third Amendment to Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar Harborside LLC and TRT Acquisitions LLC, dated June 24, 2010.*
2.2.4    Fourth Amendment to Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar Harborside LLC and TRT Acquisitions LLC, dated June 25, 2010.*
2.3    Partnership Interests Purchase and Sale Agreement by and among iStar Financial Inc., iStar NG Inc., iStar NG GenPar Inc. and TRT Acquisitions LLC, dated June 25, 2010.*
2.4    Member Interest Purchase and Sale Agreement by and among iStar Financial Inc., iStar CTL Holdco LLC and TRT Acquisitions LLC, dated June 25, 2010.*
3.1    Dividend Capital Total Realty Trust Inc. Fifth Articles of Amendment and Restatement.†
3.2    Dividend Capital Total Realty Trust Inc. Second Amended and Restated Bylaws. †
4.1    Second Amended and Restated Distribution Reinvestment Plan. †
4.2    Fourth Amended and Restated Share Redemption Program†
10.1    Dividend Capital Floating Rate Office Portfolio Loan Agreement between TRT Lending Subsidiary I, LLC and Wells Fargo Bank, National Association, dated June 25, 2010*
10.2    Dividend Capital Fixed Rate Office Portfolio Loan Agreement between TRT Lending Subsidiary I, LLC and Wells Fargo Bank, National Association, dated June 25, 2010*
10.3    Loan Agreement for Floating Rate Portfolio by and among TRT NOIP Floating Mezz Holdco LLC, and TRS NOIP Mezz Holdco LLC and iStar Financial, Inc., dated June 25, 2010.*
10.4    Loan Agreement for Fixed Rate Portfolio by and among TRT NOIP Fixed Mezz Holdco LLC and iStar Financial, Inc., dated June 25, 2010.*
10.5    Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing by and among Dividend Capital Total Realty Trust and New York Life Insurance Company, dated June 25, 2010.*
10.5.1    Side Letter Agreement Related to Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing by and among Dividend Capital Total Realty Trust and New York Life Insurance Company, dated June 25, 2010.*
10.6    Master Repurchase and Securities Contract Agreement between TRT Lending Subsidiary I, LLC and Wells Fargo Bank, National Association, dated June 25, 2010*
31.1    Rule 13a-14(a) Certification of Principal Executive Officer*
31.2    Rule 13a-14(a) Certification of Chief Financial Officer*
32.1    Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
32.2    Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

 

Previously filed
* Filed herewith

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    DIVIDEND CAPITAL TOTAL REALTY TRUST INC.
Date: August 13, 2010    

/ S /    G UY M. A RNOLD        

   

Guy M. Arnold

President

Date: August 13, 2010    

/ S /    M. K IRK S COTT        

   

M. Kirk Scott

Chief Financial Officer and Treasurer

 

53

Exhibit 2.1

PURCHASE AND SALE AGREEMENT

BETWEEN

THE ENTITIES SET FORTH ON SCHEDULE 1.1.1,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

DATED: MAY 3, 2010


TABLE OF CONTENTS

 

          Page No.

ARTICLE 1 BASIC INFORMATION

   1

        1.1

   Certain Basic Terms    1

        1.2

   Closing Costs    4

        1.3

   Notice Addresses :    4

ARTICLE 2 PROPERTY

   5

        2.1

   Property    5

ARTICLE 3 EARNEST MONEY

   7

        3.1

   Deposit and Investment of Earnest Money    7

        3.2

   Independent Consideration    7

        3.3

   Form; Failure to Deposit    7

        3.4

   Disposition of Earnest Money    8

ARTICLE 4 DUE DILIGENCE

   8

        4.1

   Due Diligence Materials To Be Delivered    8

        4.2

   Physical Due Diligence    9

        4.3

   Due Diligence/Financing Contingency Termination Rights    11

        4.4

   Updated Property Information    14

        4.5

   Return of Documents and Reports    14

        4.6

   Service Contracts    15

        4.7

   Proprietary Information; Confidentiality    15

        4.8

   No Representation or Warranty by Seller    15

        4.9

   Purchaser’s Responsibilities    16

        4.10

   Purchaser’s Agreement to Indemnify    16

ARTICLE 5 TITLE AND SURVEY

   16

        5.1

   Title Commitments    16

        5.2

   Updated Surveys    16

        5.3

   Title Review    17

        5.4

   Delivery of Title Policies at Closing    17

ARTICLE 6 OPERATIONS AND RISK OF LOSS

   18

        6.1

   Ongoing Operations    18

        6.2

   Casualty    19

        6.3

   Condemnation    20

        6.4

   Estoppel Certificates/SNDAs.    21

        6.5

   Acknowledgments    22

ARTICLE 7 CLOSING

   23

        7.1

   Closing    23

        7.2

   Conditions to Parties’ Obligation to Close    23

        7.3

   Seller’s Deliveries in Escrow    27

        7.4

   Purchaser’s Deliveries in Escrow    28

        7.5

   Closing Statements    29

        7.6

   Purchase Price    29

 

ii


        7.7

   Possession    29

        7.8

   Delivery of Books and Records    29

        7.9

   Notice to Tenants    29

ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS

   29

        8.1

   Prorations for Taxes    29

        8.2

   Prorations for Tenant-Paid Operating Expenses    30

        8.3

   Prorations for Non-Tenant Paid Items    30

        8.4

   Miscellaneous Prorations    32

        8.5

   Leasing Costs    32

        8.6

   Closing Costs    32

        8.7

   Final Adjustment After Closing    32

        8.8

   Tenant Deposits    32

        8.9

   Commissions    33

ARTICLE 9 REPRESENTATIONS AND WARRANTIES

   33

        9.1

   Seller’s Representations and Warranties    33

        9.2

   Purchaser’s Representations and Warranties    36

        9.3

   Survival of Representations and Warranties    37

ARTICLE 10 DEFAULT AND REMEDIES

   39

        10.1

   Seller’s Remedies    39

        10.2

   Purchaser’s Remedies    40

        10.3

   Attorneys’ Fees    40

        10.4

   Other Expenses    40

ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY

   41

        11.1

   Disclaimers By Seller    41

        11.2

   Sale “As Is, Where Is”    41

        11.3

   Seller Released from Liability    42

        11.4

   “Hazardous Materials” Defined    43

        11.5

   Intentionally Deleted    43

        11.6

   Survival    43

ARTICLE 12 MISCELLANEOUS

   43

        12.1

   Parties Bound; Assignment    43

        12.2

   Headings    44

        12.3

   Invalidity and Waiver    44

        12.4

   Governing Law    44

        12.5

   Survival    44

        12.6

   Entirety and Amendments    44

        12.7

   Time    44

        12.8

   Intentionally Omitted    45

        12.9

   No Electronic Transactions    45

        12.10

   Notices    45

        12.11

   Construction    45

        12.12

   Calculation of Time Periods; Business Day    45

        12.13

   Execution in Counterparts    45

        12.14

   Recordation    45

 

iii


        12.15

   Further Assurances    46

        12.16

   Discharge of Obligations    46

        12.17

   ERISA    46

        12.18

   No Third Party Beneficiary    46

        12.19

   Reporting Person    46

        12.20

   Post-Closing Access    47

        12.21

   Waiver of Jury Trial    47

        12.22

   Information and Audit Cooperation    47

        12.23

   Bulk Sales Laws    47

 

iv


LIST OF DEFINED TERMS

 

     Page No.

Agreement

   1

Allocated Purchase Price

   2

Assignment

   27

Assignments

   27

Bridge Financing Commitment

   12

Bridge Loan

   13

Business Day

   45

Casualty

   19

Casualty Tenant Termination Event

   20

Casualty Tenant Termination Notice

   20

CERCLA

   42

Closing

   23

Closing Date

   3

Closing Date Extension Condition

   13

Co-Insurance

   17

Condemnation

   20

Condemnation Tenant Termination Event

   20

Condemnation Tenant Termination Notice

   20

Confidentiality Agreement

   3

Deed

   27

Deeds

   27

Demanding Party

   8

Due Diligence Termination Notice

   11

Earnest Money

   2

Effective Date

   3

Escrow Agent

   2

Estoppel Shortfall

   24

Fidelity

   17

Financial Advisor

   3

Financing Commitment Status Statement

   12

First American

   17

Guaranties

   6

Guaranty

   6

Harborside

   3

Harborside Earnest Money

   7

Harborside Membership Interests

   3

Harborside Purchase and Sale Agreement

   3

Harborside Seller

   3

Hazardous Materials

   43

IBM

   19

IBM Property

   19

Improvements

   5

Independent Consideration

   7

Inspection Period

   3

 

v


Intangible Personal Property

   6

iPortal

   8

iStar

   3

Land

   5

Lease

   6

Lease Files

   9

Leases

   6

License Agreements

   7

Mezzanine Loan

   13

Non-Demanding Party

   8

Non-Prime Tenants

   24

Operating Expenses

   30

Operating Statements

   8

Permitted Exceptions

   17

Prime Tenants

   24

Property

   5

Property Information

   8

Purchase Price

   2

Purchaser

   1

Real Property

   6

Rent Roll

   8

Reports

   14

ROFO Waivers

   22

Seller

   1

Seller Estoppel Cap

   25

Seller Estoppels

   24

Seller’s Representatives

   38

Senior Lender

   12

Service Contracts

   6

SNDA

   22

SNDAs

   22

Surveys

   9

Survival Period

   37

Tangible Personal Property

   6

Taxes

   29

Tenant Estoppel Certificate

   21

Tenant Receivables

   30

Term Financing Commitment

   11

Third Party Estoppel Certificate

   21

Third Party Estoppel Certificates

   21

Title Affidavits

   27

Title and Survey Review Period

   3

Title Commitment

   16

Title Commitments

   16

Title Company

   2

Title Policies

   17

 

vi


Title Policy

   17

Unbilled Tenant Receivables

   30

Uncollected Delinquent Tenant Receivables

   30

Updated Property Information

   14

 

vii


PURCHASE AND SALE AGREEMENT

32 PROPERTIES DESCRIBED GENERALLY ON SCHEDULE 1.1.1

This Purchase and Sale Agreement (this “ Agreement ”) is made and entered into by and between Purchaser and Seller.

RECITALS

A. Defined terms are indicated by initial capital letters. Defined terms shall have the meanings set forth herein, whether or not such terms are used before or after the definitions are set forth.

B. Purchaser desires to purchase the Property and Seller desires to sell the Property, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants and agreements set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as follows:

ARTICLE 1

BASIC INFORMATION

1.1 Certain Basic Terms . The following defined terms shall have the meanings set forth below:

1.1.1 “ Seller ”: means each of the parties listed on Schedule 1.1.1 . It is understood and agreed that each Seller owns the property generally described by common address listed opposite such Seller party on Schedule 1.1.1 and, with respect to all references in this Agreement to Seller and each and every reference to the “ Property ”, “ Land ”, “ Improvements ”, “ Real Property ”, “ Leases ”, “ Guaranty ”, “ Guaranties ”, “ Tangible Personal Property ”, “ Service Contracts ”, “ Intangible Personal Property ”, “ License Agreements ”, “ Property Information ” (and each component thereof), “ Property Documents ” (and each component thereof), “ Updated Property Information ” (and each component thereof), “ Permitted Exceptions ”, “ Reports ”, “ Title Commitment ”, “ Title Policy ”, “ Lease Casualty Event ”, “ Material Damage ”, “ Materially Damaged ”, “ Condemnation ”, “ Lease Condemnation Event ”, “ Purchase Price Adjustment Notice ”, “ Price Adjustment Period ”, “ Operating Expenses ”, “ Tenant Receivables ”, “ Unbilled Tenant Receivables ”, “ Uncollected Delinquent Tenant Receivables ”, “ Taxes ” and “ Hazardous Materials ”, such reference shall be limited to each of such items as they relate solely to the property generally described by common address and the Seller associated therewith. Additionally, all exhibits referencing any of the foregoing listed items will indicate the common address to which such exhibit, or portion thereof relates.

1.1.2 “ Purchaser ”: TRT Acquisitions LLC, a Delaware limited liability company.


1.1.3 “ Purchase Price ”: $1,190,500,000.00; subject to adjustment as provided herein, and as allocated as set forth on Schedule 1.1.3 (the “ Allocated Purchase Price ”). The Allocated Purchase Price of each Property is only for (A) purposes of determining (i) the amount of transfer taxes payable in connection with the transfer of such Property, (ii) the amount of the reduction in the Purchase Price due to the termination of this Agreement with respect to such Property pursuant to the terms hereof and (iii) compliance with the Estoppel Requirement, and (B) tax reporting and accounting purposes. In no event shall the Allocated Purchase Price of any individual Property be deemed or construed to reflect the sales price of such individual Property in a stand alone transaction.

1.1.4 “ Earnest Money ”: $46,200,000.00, including all interest earned thereon, to be deposited in accordance with Section 3.1 below together with the Harborside Earnest Money if added thereto pursuant to Section 3.1. All references herein to Earnest Money shall be deemed to include only such portions thereof as have been deposited with Escrow Agent in accordance with Section 3.1.

1.1.5 “ Title Company ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Chicago, Illinois 60602

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

And

Fidelity Title Insurance Company

8450 E. Crescent Parkway, Suite 410

Greenwood Village, CO 80111

Attn: Ms. Valena Bloomquist

Telephone number: (303) 244-9198

Facsimile number: (720) 489-7593

E-mail: valena.bloomquist@fnf.com

1.1.6 “ Escrow Agent ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

 

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1.1.7 “ Financial Advisor ”: HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, LP.

1.1.8 “ Effective Date ”: The date on which this Agreement is executed by the latter to sign of Purchaser or Seller, as indicated on the signature page of this Agreement. If the execution date is left blank by either Purchaser or Seller, the Effective Date shall be the execution date inserted by the other party.

1.1.9 “ Title and Survey Review Period ”: The period ending on May 11, 2010.

1.1.10 “ Inspection Period ”: The period beginning on the Effective Date and ending on May 11, 2010, subject to extension as provided in Section 6.1.4(1).

1.1.11 “ Closing Date ”: The date which is ten (10) days after the expiration of the Inspection Period, subject to extension as provided in Section 4.3.2.

1.1.12 “ Confidentiality Agreement ”: The letter agreement dated March 31, 2010 between iStar Financial Inc., an affiliate of Seller (“ iStar ”), and Purchaser.

1.1.13 “ Harborside ”: The property commonly known as Harborside Financial Center Plaza X, Jersey City, New Jersey.

1.1.14 “ Harborside Membership Interests ”: The one hundred percent (100%) membership interests of American Financial Exchange L.L.C. owned by Harborside Seller.

1.1.15 “ Harborside Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and Harborside Seller dated as of the date hereof.

1.1.16 “ Harborside Seller ”: iStar Harborside LLC, a Delaware limited liability company.

 

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1.2 Closing Costs . Closing costs shall be allocated and paid as follows:

 

Cost

  

Responsible Party

Title Commitments required to be delivered pursuant to Section 5.1    Seller
Premium for standard form Title Policies with extended coverage and Co-Insurance (subject to this Section 1.2 and Section 5.4) required to be delivered pursuant to Section 5.4    Seller
Premium for any upgrade of Title Policies for additional coverage, including, without limitation, the premium for any re-insurance, and any endorsements to the Title Policies desired by Purchaser, any inspection fee charged by the Title Company, tax certificates, municipal and utility lien certificates, and any other Title Company charges other than those required in connection with satisfying any liens which are not Permitted Exceptions    Purchaser
Any increase in the premium for the Title Policies attributable to obtaining Co-Insurance as provided in Section 5.4    Purchaser
Any costs required to cause the Title Company to issue the Title Policies with extended coverage    Seller
Costs of new surveys and/or any revisions, modifications or recertifications to the existing Surveys.    Seller
Costs for UCC Searches    Purchaser
Recording Fees    Paid in accordance with local custom
Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or assessments    Paid in accordance with Schedule 1.2
Any escrow fee charged by Escrow Agent for holding the Earnest Money or conducting the Closing    Purchaser  1 / 2 Seller  1 / 2
Real Estate Fee to Financial Advisor    Seller
All other closing costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring the same.   

1.3 Notice Addresses :

All notices required or permitted to be sent hereunder shall be sent as follows:

 

Purchaser:   TRT Acquisitions LLC    Copies to:    TRT Acquisitions LLC
  518 17 th Street, Suite 1700       518 17 th Street, Suite 1700
  Denver, CO 80202       Denver, CO 80202

Attention:

 

Mr. John Blumberg

Mr. Greg Moran

      Attention: Joshua J. Widoff, Esq.
Telephone:   303-228-2200       Telephone: 303-228-2200
Facsimile:   303-577-9797       Facsimile: 303-869-4602
E-mail:   gmoran@dividendcapital.com       E-mail: jwidoff@dividendcapital.com
       

and

 

Greenberg Traurig, LLP

200 Park Avenue

New York, NY 10166

Attention: Robert J. Ivanhoe, Esq.

Telephone: 212-801-9333

Facsimile: 212-801-6400

E-mail: ivanhoer@gtlaw.com

 

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Seller:   c/o iStar Financial Inc.    Copies to:    iStar Financial Inc.
  1114 Avenue of the Americas       1114 Avenue of the Americas
  New York, NY 10036       New York, NY 10036
  Attention: Samantha Garbus       Attn: Mary-Beth Roselle, Esq.
  Telephone: 212-930-9407       Telephone: 212-930-9481
  Facsimile: 212-930-9494       Facsimile: 212-930-9494
  E-mail: sgarbus@istarfinancial.com       E-mail: mroselle@istarfinancial.com
       

iStar Asset Services Inc.

180 Glastonbury Boulevard

Glastonbury, CT 06033

Attn: President

Telephone: 860-815-5910

Facsimile: 860-815-5901

E-mail: brubin@istarfinancial.com

       

Katten Muchin Rosenman LLP

525 West Monroe St.

Chicago, IL 60661-3693

Attn: Gregory P.L. Pierce, Esq.

Phone: 312-902-5541

Fax: 312-577-8893

Email: greg.pierce@kattenlaw.com

ARTICLE 2

PROPERTY

2.1 Property . Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the following property (individually and/or collectively, as the context may require, the “ Property ”):

2.1.1 Real Property . The land described in Exhibit A hereto (individually and/or collectively, as the context may require, the “ Land ”), together with (a) all improvements located thereon, but expressly excluding improvements and structures owned by any tenant or other third party pursuant to Leases (individually and/or collectively, as the context may require, the “ Improvements ”), (b) all right, title and interest of Seller, if any, in and to the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining thereto, including without limitation, any and all minerals and mineral rights, oil, gas, and oil and gas rights, development rights, air rights, water and water rights, wells, well rights and well permits, water and sewer taps, and sanitary or storm sewer capacity, and (c) all right, title, and interest of Seller, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the Land (the Land, together with items (a), (b) and (c) of this Section 2.1.1, individually and/or collectively, as the context may require, the “ Real Property ”).

 

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2.1.2 Leases and Guaranties . All of Seller’s right, title and interest, without warranty except as set forth herein, in those leases, including any amendments to such leases, described on Schedule 2.1.2 and all leases which may be made by Seller after the Effective Date and prior to Closing as permitted by this Agreement (individually a “ Lease ” and collectively the “ Leases ”), all guaranties of such Leases, including any amendments to such guaranties, described on Schedule 2.1.2 (individually a “ Guaranty ” and collectively the “ Guaranties ”), and all other collateral securing the Leases or Guaranties, including without limitation all security deposits and letters of credit.

2.1.3 Tangible Personal Property . All of Seller’s right, title and interest, without warranty, except as set forth herein, in the equipment, machinery, furniture, furnishings, supplies and other tangible personal property, if any, owned by Seller and now or hereafter located in and used in connection with the operation, ownership or management of the Real Property, but specifically excluding any items of personal property owned or leased by any tenants at or on the Real Property and further excluding any items of personal property owned by third parties and leased to Seller (collectively, the “ Tangible Personal Property ”), which excluded items of personal property are listed on Schedule 2.1.3 .

2.1.4 Intangible Personal Property . All of Seller’s right, title and interest, if any, without warranty, except as set forth herein, in all intangible personal property related to the Real Property and the Improvements, including, without limitation: all trade names and trade marks associated with the Real Property and the Improvements, including Seller’s rights and interests, if any, in the name of the Real Property; the plans and specifications and other architectural and engineering drawings for the Improvements, if any (to the extent assignable without cost to Seller); contract rights related to the operation, ownership or management of the Real Property, including maintenance, service, construction, supply and equipment rental contracts, if any, but not including Leases or License Agreements (collectively, the “ Service Contracts ”) (but only to the extent assignable without cost to Seller; warranties (to the extent assignable without cost to Seller); governmental permits, approvals and licenses, if any (to the extent assignable without cost to Seller); and telephone exchange numbers (to the extent assignable without cost to Seller) (all of the items described in this Section 2.1.4 collectively referred to as the “ Intangible Personal Property ”). To the extent any items of Intangible Personal Property cannot be assigned to Purchaser without cost to Seller, Purchaser shall have the option, to be exercised in writing on or before the Closing Date, to accept such assignment and pay any cost associated therewith, or to cause Seller to terminate the same (if applicable) at Seller’s expense, or to permit Seller to retain the same. Tangible Personal Property and Intangible Personal Property shall not include (a) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller or any affiliate of Seller, (b) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Seller, or which are subject to a confidentiality agreement, (c) such documents, materials or information received by Seller from tenants and covered by confidentiality agreements between such tenants and Seller, except that such documents, materials or information shall be included in Tangible Personal

 

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Property if Purchaser shall have agreed in writing to be bound by the terms of such confidentiality agreements prior to Seller’s delivery of such documents, materials and information to Purchaser, and (d) any trade name, mark or other identifying material that includes the name “iStar” or any derivative thereof.

2.1.5 License Agreements . All of Seller’s right, title and interest, without warranty, except as set forth herein, in and to all agreements (other than the Leases and the Guaranties), if any, for the leasing or licensing of rooftop space or equipment, telecommunications equipment, cable access and other space, equipment and facilities that are located on or within the Real Property and generate income to Seller as the owner of the Real Property, including agreements which may be made by Seller after the Effective Date and prior to Closing as permitted by this Agreement (the “ License Agreements ”).

ARTICLE 3

EARNEST MONEY

3.1 Deposit and Investment of Earnest Money . Within two (2) Business Days after the Effective Date, Purchaser shall deposit Twenty-Three Million One Hundred Thousand and no/100 Dollars ($23,100,000.00) with Escrow Agent and deliver a completed, executed Form W-9 to the Escrow Agent and the Seller. Within two (2) Business Days after Purchaser has delivered the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, Purchaser shall deposit Twenty-Three Million One Hundred Thousand and no/100 Dollars ($23,100,000.00) with Escrow Agent. Escrow Agent shall invest the Earnest Money in the Federated Prime Obligations Fund (NASDAQ: POIXX), shall not commingle the Earnest Money with any funds of Escrow Agent or others, and shall promptly provide Purchaser and Seller with confirmation of the investments made. Such account shall have no penalty for early withdrawal, and Purchaser accepts all risks with regard to the investment of the Earnest Money. Upon any termination of the Harborside Purchase and Sale Agreement prior to the closing thereunder except pursuant to Section 4.3.1, Section 4.3.2 or Article X thereof, Seller and Purchaser hereby direct Escrow Agent to immediately add the earnest money held by Escrow Agent pursuant to the Harborside Purchase and Sale Agreement (the “ Harborside Earnest Money ”) to the Earnest Money and thereafter all references herein to the Earnest Money shall be deemed to refer to the Earnest Money as increased by the Harborside Earnest Money.

3.2 Independent Consideration . If this Agreement terminates for any reason and Purchaser is entitled to receive a return of the Earnest Money pursuant to the terms hereof, the Escrow Agent shall first disburse to Seller One Hundred and No/100 Dollars ($100.00) as independent consideration for Seller’s performance under this Agreement (“ Independent Consideration ”), which shall be retained by Seller in all instances.

3.3 Form; Failure to Deposit . The Earnest Money shall be paid by wire transfers to Escrow Agent of immediately available U.S. federal funds. If Purchaser fails to timely deposit all of the Earnest Money within the time periods required, Seller may terminate this Agreement by written notice to Purchaser and Escrow Agent, in which event any Earnest Money that has previously been deposited by Purchaser with Escrow Agent shall be immediately delivered to Seller and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

 

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3.4 Disposition of Earnest Money . The Earnest Money shall be applied as a credit to the Purchase Price at Closing. However, if this Agreement terminates pursuant to Sections 4.3.1 or 4.3.2, Escrow Agent shall pay the entire Earnest Money (less the Independent Consideration) to Purchaser one (1) Business Day following the end of the Inspection Period (as long as the current investment can be liquidated and disbursed in one (1) Business Day). No notice to Escrow Agent from Seller shall be required for the release of the Earnest Money to Purchaser by Escrow Agent if this Agreement terminates pursuant to Section 4.3.1 or 4.3.2. In the event of a termination of this Agreement by either Seller or Purchaser other than pursuant to Section 4.3.1 or 4.3.2, the party (the “ Demanding Party ”) seeking to terminate this Agreement shall give written notice of such election to Escrow Agent and the other party (the “ Non-Demanding Party ”) to this Agreement. Upon receipt of any such notice of termination, Escrow Agent shall give notice to the Non-Demanding Party of Escrow Agent’s receipt of such notice, enclosing a copy of the notice in question. If within five (5) Business Days after the Non-Demanding Party is given or deemed to have been given notice of Escrow Agent’s receipt of the notice in question, Escrow Agent has not received from the Non-Demanding Party its notice of objection to the notice, then Escrow Agent shall disburse the Earnest Money as requested by the notice in question, on the sixth (6th) Business Day following its giving of such notice to the Non-Demanding Party. If within said five (5) Business Day period Escrow Agent receives from the Non-Demanding Party notice of objection, then Escrow Agent shall notify the Demanding Party of the objection, and continue to hold the Earnest Money until Escrow Agent is in receipt of a joint order direction or a court order instructing Escrow Agent to disburse the Earnest Money. In such event of objection, Escrow Agent may interplead the Earnest Money into a court of competent jurisdiction in a New York state court or federal court located in the State, City and County of New York. All attorneys’ fees and costs and Escrow Agent’s costs and expenses incurred in connection with such interpleader shall be assessed against the party that is not awarded the Earnest Money, or if the Earnest Money is distributed in part to both parties, then in the inverse proportion of such distribution.

ARTICLE 4

DUE DILIGENCE

4.1 Due Diligence Materials To Be Delivered . Seller has delivered to Purchaser complete (to Seller’s knowledge) copies of, or made electronic copies available to Purchaser on Seller’s iPortal internet site relating to the Property (“ iPortal ”), the following (the “ Property Information, ” or the “Property Documents ”):

4.1.1 Rent Roll . A current rent roll in Seller’s standard form (“ Rent Roll ”) for the Property;

4.1.2 Financial Information . A copy of operating statements and a summary of capital expenditures pertaining to each Property for the 12 months preceding the Effective Date (collectively, “ Operating Statements ”);

4.1.3 Environmental Reports . A copy of any environmental reports or environmental site assessments related to each Property prepared for the benefit of Seller, it being acknowledged by Purchaser that Purchaser shall not be entitled to rely thereon absent an express reliance letter from the company issuing such environmental reports or environmental site assessments obtained by Purchaser at Purchaser’s sole cost and expense;

 

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4.1.4 Tax Statements . A copy of ad valorem tax statements relating to each Property for the current tax period;

4.1.5 Surveys . A copy of the most current survey, if any, of each Property in Seller’s possession (collectively, the “ Surveys ”);

4.1.6 Service Contracts . Copies of any Service Contracts for each Property;

4.1.7 Personal Property . A list of Tangible Personal Property for each Property;

4.1.8 License Agreements . Copies of any License Agreements for each Property;

4.1.9 Lease Files . The lease file for each Lease affecting each Property, including, without limitation, the Lease, any amendments thereto, the Guaranty (if applicable), any amendments thereto, any letter agreements, any assignments which are then in effect and any letters of credit which are then in effect (collectively, the “ Lease Files ”);

4.1.10 Maintenance Records and Warranties . Maintenance work orders for each Property for the 12 months preceding the Effective Date and warranties for each Property, if any, on roofs, air conditioning units, fixtures and equipment;

4.1.11 Plans and Specifications . Building plans and specifications relating to each Property, if any;

4.1.12 Licenses, Permits and Certificates of Occupancy . Licenses, permits and certificates of occupancy relating to each Property; and

4.1.13 Insurance Certificates . Copies of certificates evidencing the existing liability and casualty insurance coverage for each Property including any liability and casualty insurance maintained by affiliates of Seller.

Except for the Rent Roll contemplated in Section 4.1.1, Seller’s obligation to deliver the items listed in this Section 4.1 shall be limited to the extent such items are in the possession of Seller or its property management company.

4.2 Physical Due Diligence . Commencing on the Effective Date and continuing until the Closing, subject to the terms of the Leases, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental

 

-9-


inspections and tests, provided that (a) Purchaser must give Seller the greater of (i) two (2) full Business Days’ or (ii) the minimum notice period required by the applicable Lease(s) for such Property, written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent shall not be unreasonably withheld or conditioned), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser and its contractors, agents and representatives have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury or death and property damage insurance including coverage for contractual liability and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (2) workers’ compensation and employers’ liability insurance with limits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder Seller and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. The requirement to carry the insurance specified in the preceding sentence may be satisfied through blanket or umbrella insurance policies carried by Purchaser or its affiliates. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any Seller-designated tenant representative; provided, however, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any Seller-designated tenant representative and allow Seller the opportunity to participate in such communication if Seller desires. No assurance or guaranty is afforded by Seller that any Seller-designated tenant representative will communicate with Purchaser or Purchaser’s representatives. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may, without Seller’s consent or participation, communicate with any governmental authority for the sole purpose of gathering information regarding current zoning compliance of the Real Property and current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement. Other than as set forth in the previous sentence, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section 4.2, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means in person or otherwise, and includes requests for inspections or other access to any Property.

 

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4.3 Due Diligence/Financing Contingency Termination Rights .

4.3.1 Notwithstanding anything to the contrary in this Agreement, this Agreement shall automatically terminate on the last day of the Inspection Period unless Purchaser gives written notice waiving such termination and containing such other information required by Section 4.3.2 hereof and Section 4.3.2 of the Harborside Purchase and Sale Agreement to Seller, Harborside Seller and Escrow Agent (the “ Due Diligence Waiver Notice ”) on or before the last day of the Inspection Period. If Purchaser delivers a Due Diligence Waiver Notice, this Agreement, and the Harborside Purchase and Sale Agreement pursuant to the terms thereof, shall continue in full force and effect, subject to the provisions of this Agreement and the Harborside Purchase and Sale Agreement, including Section 4.3.2 hereof and thereof, and Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Harborside Purchase and Sale Agreement) and conducted all inspections and tests of the Property and Harborside that it considers important.

4.3.2 Notwithstanding anything to the contrary in this Agreement, this Agreement, and the Harborside Purchase and Sale Agreement pursuant to the terms thereof, shall automatically terminate on the last day of the Inspection Period (as defined herein and in the Harborside Purchase and Sale Agreement) unless Purchaser shall notify Seller and Harborside Seller in the Due Diligence Waiver Notice that Purchaser (i) was able to obtain a financing commitment for the transaction described herein and in the Harborside Purchase and Sale Agreement from any lender which lender and the terms of such loan are satisfactory to Purchaser in its sole and absolute discretion (the “ Term Financing Commitment ”) and Purchaser has provided Seller and Harborside Seller with a fully executed copy of the Term Financing Commitment, in which case Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement, Purchaser shall proceed to closing the acquisition of the Harborside Membership Interests pursuant to the Harborside Purchase and Sale Agreement and iStar shall have no obligation to provide the Mezzanine Loan and iStar’s providing the Mezzanine Loan and the closing of the loan contemplated by the Term Financing Commitment shall not be conditions to Purchaser’s obligation to close hereunder or under the Harborside Purchase and Sale Agreement, (ii) was able to obtain a financing commitment or commitments for the GE Bridge Loan from General Electric Capital Corporation (“ GECC ”) pursuant to the terms of this Agreement and the Harborside Purchase and Sale Agreement (such single or multiple commitments are referred to herein collectively as the “ GE Bridge Financing Commitment ”), which GE Bridge Financing Commitment is satisfactory to Purchaser in its sole and absolute discretion and must specify all major business terms of the GE Bridge Loan, including, without limitation, all major amendments to the GE Loan, and Purchaser has provided Seller and Harborside Seller with a fully executed copy of the GE Bridge Financing Commitment, in which case iStar shall, subject to the terms of this Section 4.3.2 and Section 4.3.2 of the Harborside Purchase and Sale Agreement, provide the Mezzanine Loan simultaneously with the closing of the GE Bridge Loan, Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement, Purchaser shall proceed to closing the acquisition of the Harborside Membership Interests pursuant to the Harborside Purchase and Sale Agreement and, provided Purchaser has not subsequently elected to obtain alternative financing, (x) iStar’s providing the Mezzanine Loan simultaneously with the closing of the GE Bridge Loan and (y) GECC’s closing of the GE Bridge Loan under the terms of the GE Bridge Financing Commitment on the Closing Date (unless the GE Bridge Loan fails to close as a result of (A) Purchaser’s uncured default under the GE Bridge Financing Commitment, (B) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (C) Purchaser’s failure to accept documentation for the GE Bridge Loan that is commercially reasonable for debt assumption transactions) shall be

 

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conditions to Purchaser’s obligation to close hereunder and under the Harborside Purchase and Sale Agreement, (iii) was able to obtain a financing commitment for a Bridge Loan from GECC or any alternative senior lender the terms of which loan and identity of such lender are satisfactory to Purchaser in its sole and absolute discretion (“ Senior Lender ”) pursuant to the terms of this Agreement and the Harborside Purchase and Sale Agreement (the “ Bridge Financing Commitment ”) and Purchaser has provided Seller and Harborside Seller with a fully executed copy of the Bridge Financing Commitment, in which case iStar shall, subject to the terms of this Section 4.3.2 and Section 4.3.2 of the Harborside Purchase and Sale Agreement, provide the Mezzanine Loan simultaneously with the closing of the Bridge Loan, Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement and Purchaser shall proceed to closing the acquisition of the Harborside Membership Interests pursuant to the Harborside Purchase and Sale Agreement but the closing of the Bridge Loan and the Mezzanine Loan (so long as iStar is not in default of its obligation to provide the Mezzanine Loan as set forth herein and in the Harborside Purchase and Sale Agreement) shall not be conditions to Purchaser’s obligations to close hereunder or under the Harborside Purchase and Sale Agreement, or (iv) has not obtained the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms that are yet acceptable to Purchaser in Purchaser’s sole and absolute discretion but that Purchaser (A) desires to proceed to Closing hereunder and under the Harborside Purchase and Sale Agreement notwithstanding that Purchaser does not have the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms that are yet acceptable to Purchaser in Purchaser’s sole and absolute discretion and (B) requests an additional ten (10) day period (the “ Financing Commitment Extension Period ”) within which to obtain the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms acceptable to Purchaser, in which case Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Harborside Purchase and Sale Agreement), conducted all inspections and tests of the Property and Harborside that it considers important, and completed its due diligence of, the Property and the Membership Interests (items (i), (ii) and (iii) above are each referred to herein individually as a “ Financing Commitment Status Statement ”). If the Due Diligence Waiver Notice contains the information set forth in this subsection (iv) above, prior to the end of the Financing Commitment Extension Period, Purchaser shall deliver to Seller and Harborside Seller a notice setting forth the Financing Commitment Status Statement applicable as of the last day of the Financing Commitment Extension Period and the terms and conditions in this subsection (iv) and in Section 4.3.2 of the Harborside Purchase and Sale Agreement related thereto shall apply. If Purchaser fails to deliver the applicable Financing Commitment Status Statement and a fully executed copy of either the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment prior to the end of the Financing Commitment Extension Period, this Agreement, and the Harborside Purchase and Sale Agreement pursuant to the terms thereof, shall automatically terminate as of the last day of the Financing Commitment Extension Period, in which case the Earnest Money shall be immediately returned to Purchaser and the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement. Any Financing Commitment Status Statement delivered by Purchaser pursuant to the terms hereof shall be the same as the Financing Commitment Status Statement delivered by Purchaser pursuant to the Harborside Purchase and Sale Agreement. If Purchaser obtains either the Term Financing Commitment, the

 

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GE Bridge Financing Commitment or the Bridge Financing Commitment pursuant to the terms of, and within the timeframes set forth in, this Section 4.3.2 and Section 4.3.2 of the Harborside Purchase and Sale Agreement, then Purchaser or Seller may elect to extend the then current Closing Date from time to time to a date that is not more than ten (10) days following the then current Closing Date by delivering written notice to the other party at least two (2) days prior to the then current Closing Date, respectively, solely in order for (A) Purchaser to comply with the terms of the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment (as applicable) or to obtain alternative financing and (B) Seller to satisfy the conditions to Purchaser’s obligations to close set forth in Section 7.2.2 of this Agreement (the foregoing items (A) and (B) are each referred to herein individually as, a “ Closing Date Extension Condition ”); provided, however, neither Purchaser nor Seller shall have the right to extend the Closing Date beyond the earlier of June 24, 2010 and the required closing date of the lender providing the financing for Purchaser’s acquisition of the Property and the Harborside Membership Interests as described in the Financing Commitment Status Statement; provided, further, no election by Purchaser or Seller to extend the Closing Date shall be valid unless either Purchaser or Seller shall have simultaneously elected to extend the closing date of the Harborside Purchase and Sale Agreement in accordance with the terms thereof. As used in this Section 4.3.2, “ GE Bridge Loan ” shall mean the assumption of the existing loans from GECC secured by the Property and Harborside (collectively, the “ GE Loan ”) less a $100,000,000.00 pay down (or an assumption by Purchaser of such amount of the GE Loan (following the $100,000,000.00 pay down) which when added to the Mezzanine Loan would equal sixty-five percent (65%) of the aggregate Purchase Price of the Property and the Harborside Membership Interests), which GE Bridge Loan shall be secured by the documents and instruments evidencing the GE Loan, as amended to reflect the assumption of the GE Loan by Purchaser, the $100,000,000.00 pay down, and the terms of the GE Bridge Financing Commitment; “ Bridge Loan ” shall mean a loan of Eight Hundred Million and no/100 Dollars ($800,000,000.00) (or such other amount which when added to the Mezzanine Loan would equal sixty-five (65%) percent of the aggregate Purchase Price of the Property and the Harborside Membership Interests) from Senior Lender, which Bridge Loan shall (1) be secured by a first mortgage or deed of trust on the Real Property and Harborside on terms no less favorable to Purchaser and iStar than those set forth on Schedule 4.3.2 , and (2) reflect the terms of the Bridge Financing Commitment; and “ Mezzanine Loan ” shall mean a loan from iStar in the amount of the lesser of (a) One Hundred Twenty Five Million and no/100 Dollars ($125,000,000.00) and (b) the difference between the GE Bridge Loan or the Bridge Loan (as applicable) and sixty-five (65%) percent of the aggregate Purchase Price of the Property and the Harborside Membership Interests, which Mezzanine Loan shall be (x) on terms no less favorable to Purchaser and iStar than those set forth on Schedule 4.3.2 and (y) secured by indirect pledges of the equity interests in the affiliates of Purchaser acquiring fee simple title to the Real Property and in AFE, PXR, PXURA and PXLA. iStar shall provide the Mezzanine Loan so long as (a) the terms of the GE Bridge Loan or the Bridge Loan (as applicable) generally comply with the terms of this Section 4.3.2 and Section 4.3.2 of the Harborside Purchase and Sale Agreement, and, with respect to the Bridge Loan, Schedule 4.3.2 and (b) GECC with respect to the GE Bridge Loan or Senior Lender with respect to the Bridge Loan (as applicable), enters into an intercreditor agreement with iStar on such commercially reasonable terms and provisions, and evidenced by commercially reasonable documents, which terms and provisions shall include, without limitation, the right but not the obligation of iStar to cure defaults under the Mezzanine Loan and following an event of default under the Mezzanine Loan to foreclose on

 

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the collateral securing the Mezzanine Loan. Notwithstanding anything contained in this Section 4.3.2 to the contrary, in the event the Harborside Purchase and Sale Agreement is terminated pursuant to the terms thereof (other than Article X), (w) the GE Bridge Loan shall be deemed to mean only the assumption of that portion of the GE Loan secured by the Property but shall otherwise be in the terms set forth in this Section 4.3.2, (x) all references to the aggregate Purchase Price of the Property and the Harborside Membership Interests shall be deemed to only mean the Purchase Price of the Property and (y) all references to Harborside Seller, the Harborside Purchase and Sale Agreement, Harborside, AFE, PXR, PXURA and PXLA and any similar references set forth in this Section 4.3.2 shall be deemed deleted.

4.4 Updated Property Information . From the Effective Date through the Closing Date, if and to the extent that Seller receives from an unaffiliated third-party any additional Property Information not previously provided to Purchaser, or if and to the extent that Seller receives any document, notice or correspondence from an unaffiliated third-party or otherwise obtains actual knowledge from an unaffiliated third-party source of a condition arising after the Effective Date that would render any of the representations and warranties of Seller in Section 9.1 untrue if and to the extent remade after the Effective Date, Seller shall promptly so notify Purchaser and shall make electronic copies of all such documents, notices, correspondence or other information in Seller’s possession (“ Updated Property Information ”) available to Purchaser on iPortal. Updated Property Information may include any information disclosed in the Tenant Estoppel Certificate, but such updated information shall remain subject to Purchaser’s rights pursuant to Section 7.2.1(1) and 7.2.3. The representations and warranties of Seller in Section 9.1 shall be deemed amended to reflect such Updated Property Information, provided that if the amendment or deemed amendment of any representation or warranty reflects a fact or circumstance that would trigger a termination, extension or other right of Purchaser under this Agreement, the amendment or deemed amendment of any representation or warranty to reflect such fact or circumstance shall not vitiate such right of Purchaser.

4.5 Return of Documents and Reports . As additional consideration for the transaction contemplated herein, if Purchaser terminates this Agreement, Purchaser shall provide to Seller, if requested by Seller, promptly following the receipt of notice from Seller after the termination of this Agreement, copies of all “Reports”. “ Reports ” mean (a) written third-party reports, tests, investigations and studies that pertain to contamination of, or environmental concerns regarding, the Property delivered to Purchaser or its affiliates, and (b) all other written third party reports, investigations and studies, other than economic analyses in each case under (a) and (b) prepared for Purchaser in connection with its due diligence review of the Property, including, without limitation, any and all Reports involving structural or geological conditions, environmental, hazardous waste or hazardous substances contamination of the Property, if any. The Reports shall not include any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Purchaser, or which are subject to a confidentiality agreement. The Reports shall be delivered to Seller at no cost to Seller and without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto. Purchaser’s obligation to deliver the Reports to Seller shall survive the termination of this Agreement.

 

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4.6 Service Contracts . On or prior to the Closing Date, Purchaser will advise Seller in writing which Service Contracts Purchaser requests that Seller terminate at or prior to Closing, provided Seller shall have no obligation to terminate, and Purchaser shall be obligated to assume, any Service Contracts which by their terms cannot be terminated without penalty or payment of a fee (unless Purchaser agrees in writing to pay such fee). Seller shall deliver at Closing notices of termination of all Service Contracts that Purchaser so directs. Purchaser shall assume the obligations arising from and after the Closing Date under those Service Contracts (a) that Purchaser has elected not to have Seller terminate, and (b) for which a termination notice is delivered as of or prior to Closing but for which termination is not effective until after Closing. Notwithstanding the foregoing, Seller shall, at its expense, terminate all Service Contracts which are management agreements, other than with respect to Harborside.

4.7 Proprietary Information; Confidentiality . Purchaser agrees that it is bound by the Confidentiality Agreement as if it were a party thereto, and the Confidentiality Agreement remains in full force and effect. Notwithstanding anything to the contrary set forth in the Confidentiality Agreement, (a) each party acknowledges that the other party shall be allowed to disclose the existence of this Agreement and the contents thereof in order to comply with certain disclosure requirements relating to public companies and their affiliates and (b) provided Purchaser has delivered the Due Diligence Waiver Notice pursuant to Section 4.3.1 hereof, Purchaser shall be allowed to disclose the existence of this Agreement, and deliver the Property Information and Updated Property Information, to third parties in connection with such third parties’ potential acquisition from Purchaser of one or more of the Properties or interests therein after the Closing Date so long as such third parties have agreed in writing to be bound by the terms of the Confidentiality Agreement prior to Purchaser’s disclosure of the existence of this Agreement, and delivery of the Property Information and Updated Property Information, to such third parties. The parties shall coordinate, in advance, with respect to any such public filings and/or press releases. After the Closing there shall be no restriction as between Purchaser and Seller on Purchaser’s disclosure of Property Information or Updated Property Information.

4.8 No Representation or Warranty by Seller . Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Documents, the Updated Property Information or the source(s) thereof. Purchaser further acknowledges that some if not all of the Property Documents and Updated Property Information were prepared by third parties other than Seller. Except as expressly set forth in this Agreement or in any of the documents delivered at the Closing, (a) Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents or Updated Property Information, or in any other written or oral communications transmitted or made available to Purchaser, (b) Purchaser shall rely solely upon its own investigation with respect to the Property, including, without limitation, the Property’s physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto, and (c) Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Documents and Updated Property Information and is providing the Property Documents and Updated Property Information solely as an accommodation to Purchaser.

 

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4.9 Purchaser’s Responsibilities . In conducting any inspections, investigations or tests of the Property, Property Documents and/or Updated Property Information, Purchaser and its agents and representatives shall: (a) not disturb the tenants or interfere with their use of the Property pursuant to their respective Leases; (b) not interfere with the operation and maintenance of the Property; (c) not damage any part of the Property or any personal property owned or held by any tenant or any third party; (d) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or any tenants or their agents, guests, invitees, contractors and employees; (e) comply with all applicable laws; (f) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Property; (g) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (h) subject to the provisions of Section 4.10, repair any damage to the Real Property resulting directly or indirectly from any such inspection or tests; and (i) not reveal or disclose prior to Closing any information obtained during the Inspection Period concerning the Property, the Property Documents and the Updated Property Information to anyone other than the Permitted Recipients (as defined in the Confidentiality Agreement), in accordance with the confidentiality standards set forth in Section 4.7 above, or except as may be otherwise required by law. Purchaser’s obligations under this Section 4.9 shall survive the termination of this Agreement.

4.10 Purchaser’s Agreement to Indemnify . Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests permitted under this Agreement or any violation of the provisions of Sections 4.2, 4.7, and 4.9; provided, however, the indemnity shall not protect Seller from any liabilities for matters merely discovered by Purchaser (i.e., environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of Seller it being agreed by Purchaser and Seller that the mere discovery by Purchaser of such matters shall not constitute an aggravation of any pre-existing liability of Seller. Purchaser also hereby agrees to indemnify, defend and hold any tenant harmless from and against any and all claims, causes of action, damages, liabilities and expenses which such tenant may suffer or incur due to Purchaser’s breach of its obligation under Sections 4.7 and 4.9 above to maintain the confidential nature of any Property Documents, Updated Property Information or other information relative to such tenant. Purchaser’s obligations under this Section 4.10 shall survive the termination of this Agreement and shall survive the Closing.

ARTICLE 5

TITLE AND SURVEY

5.1 Title Commitments . Purchaser acknowledges that copies of current commitments for title insurance or preliminary title reports with respect to the Property, together with copies of all documents of record referred to therein (individually, a “ Title Commitment ” and collectively, the “ Title Commitments ”) issued by First American on ALTA 2006 Owners Forms or state promulgated forms have been delivered or made available to Purchaser.

5.2 Updated Surveys . Purchaser has arranged, at Seller’s expense, for the preparation of new surveys or the revision, modification, or re-certification of the existing Surveys as necessary in order for First American to delete the survey exceptions from the Title Policies.

 

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5.3 Title Review . During the Title and Survey Review Period, Purchaser shall review title to the Property as disclosed by the Title Commitments and the Surveys. Seller shall have no obligation to cure title objections except liens of an ascertainable amount created by, under or through Seller, or assumed by Seller, which liens Seller shall cause to be released at or prior to Closing (with Seller having the right to apply the Purchase Price or a portion thereof for such purpose), and Seller shall deliver the Property free and clear of any such liens; provided, however, that the foregoing requirement to discharge liens shall not apply to liens on any tenant’s leasehold estate. Seller further agrees to remove any exceptions or encumbrances to title which are voluntarily created by, under or through Seller after the Effective Date without Purchaser’s consent (if requested, such consent shall not be unreasonably withheld or delayed). The term “ Permitted Exceptions ” shall mean: (A) the exceptions (i) that are part of the promulgated title insurance form for each Title Commitment, (ii) that the Title Company is unable to remove under applicable insurance regulations, (iii) that the Title Company has not agreed to remove from the Title Commitments notwithstanding that Seller has delivered the Title Affidavits to the Title Company, (iv) that Purchaser consents to, or is deemed to have consented to, as of the end of the Title and Survey Review Period and (v) that Seller is not required to remove as provided above; (B) matters created by, through or under Purchaser; (C) items shown on the Surveys which have not been removed as of the end of the Inspection Period (or if Purchaser does not obtain new Surveys, all matters that current, accurate surveys of the Property would show); (D) real estate taxes not yet due and payable; (E) rights of tenants under the Leases; and (F) any encumbrances relating to the Property created by, though or under any tenant of the Property that does not render title to such Property unmarketable, provided such tenant is not otherwise in default under its Lease.

5.4 Delivery of Title Policies at Closing . The parties acknowledge that First American Title Insurance Company, National Commercial Services – Chicago (“ First American ”) and Fidelity Title Insurance Company (“ Fidelity ”) constitute the Title Company. First American shall act as the lead Title Company and underwriter and shall issue the Title Policies (as hereinafter defined); provided, however, that Purchaser may obtain co-insurance from Fidelity in the amount of up to fifty percent (50%) of the Allocated Purchase Price of each Property in the form of co-insurance endorsements (“ Co-Insurance ”) so long as (i) the cost of such Co-Insurance does not increase the total cost of title insurance that Seller would otherwise pay to First American if First American were insuring the full Purchase Price unless Purchaser pays for such increased cost of title insurance and (ii) the issuance of such Co-Insurance does not delay the Closing. Purchaser, at Purchaser’s sole cost and expense, may obtain re-insurance with respect to the Title Policies from such third parties as Purchaser may elect so long as obtaining such re-insurance does not delay the Closing. In the event that the Title Company does not issue at Closing, or unconditionally commit at Closing to issue, to Purchaser, owner’s title insurance policies and Co-Insurance in accordance with the Title Commitments with extended coverage, insuring Purchaser’s title interest in each Real Property in the amount of the Allocated Purchase Price, subject only to the exclusions from coverage contained in the applicable policy and the applicable Permitted Exceptions (individually, a “ Title Policy ” and collectively, the “ Title Policies ”), Purchaser shall have the right to terminate this Agreement in its entirety, in which case the Earnest Money shall be immediately returned to Purchaser and the parties hereto shall

 

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have no further rights or obligations, other than those that by their terms survive the termination of this Agreement, or, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), in part with respect only to those Properties with respect to which the Title Company is unable to deliver such Title Policies, in which event the Purchase Price shall be reduced by the aggregate Allocated Purchase Price for such Properties; provided, however, if either Title Company alone is willing to deliver Title Policies with respect to such Properties in the amount of the aggregate Allocated Purchase Price for such Properties, Purchaser agrees to accept such Title Policies and Purchaser shall have no right to terminate this Agreement with respect to such Properties and receive any reduction in the Purchase Price.

ARTICLE 6

OPERATIONS AND RISK OF LOSS

6.1 Ongoing Operations . From the Effective Date through Closing:

6.1.1 Leases, Service Contracts and License Agreements . Seller will perform its material obligations under the Leases, Service Contracts and License Agreements unless Seller is excused from performing such obligations pursuant to such Leases, Services Contracts and License Agreements.

6.1.2 New Contracts . Except as provided in Section 6.1.4, Seller will not enter into any contract that will be an obligation affecting the Property subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than 30 days’ prior notice.

6.1.3 Maintenance of Improvements; Removal of Personal Property . Subject to Sections 6.2 and 6.3, Seller shall maintain or use reasonable efforts to cause the tenants under the Leases to maintain all Improvements substantially in their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent with Seller’s maintenance of the Improvements during Seller’s period of ownership. Seller will not remove any Tangible Personal Property except as may be required for necessary repair or replacement or with respect to items that, in Seller’s judgment are obsolete, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property.

6.1.4 Leasing; License Agreements . Seller will not (i) amend or terminate any existing Lease or License Agreement, (ii) consent to the assignment of any Lease or License Agreement, (iii) enter into any new Lease or new License Agreement or (iv) grant its consent, to the extent Seller’s consent is required, to a sublease of the Property, a modification or assignment of a sublease covering the Property, a substitution of the Property covered by the Lease with The Goodyear Tire & Rubber Company as a result of a Casualty or any other item for which a consent is required under any Lease or License Agreement (the foregoing items (i), (ii), (iii) and (iv) are each referred to herein as, a “ Lease Event ”) after the Effective Date and prior to the Closing Date without first providing Purchaser (a) all relevant supporting documentation, as reasonably determined by Seller, including, without limitation, financial information for the assignee, tenant, subtenant and any guarantor to the extent in Seller’s possession, and (b) as to any Lease Event which is to be executed or granted after the expiration of the Inspection Period, Seller’s request for Purchaser’s approval. If Purchaser’s approval is requested by Seller as to any

 

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Lease Event, Purchaser shall be held to the same standard for approval as Seller is held to in the document giving rise to such approval or consent right, and Purchaser agrees to give Seller written notice of its approval or disapproval of a proposed Lease Event within three (3) Business Days after Purchaser’s receipt of the items in Section 6.1.4(a) and Section 6.1.4(b). If Purchaser does not respond to Seller’s request within such time period, then Purchaser will be deemed to have approved such Lease Event. Purchaser’s approval rights and obligations will vary depending on whether such Lease Event is to be executed or granted before or after the expiration of the Inspection Period, as follows:

(1) Purchaser’s approval shall not be required with regard to any Lease Event which is to be executed or granted on or prior to the end of the Inspection Period. If Seller gives Purchaser notice of the execution or grant of a Lease Event during the final three (3) Business Days of the Inspection Period, the Inspection Period will be extended to the third (3 rd ) Business Day following the date such notice is given to Purchaser.

(2) With respect to a request for approval delivered by Seller to Purchaser for the execution or grant of a Lease Event after the expiration of the Inspection Period, so long as Purchaser has complied with its standard for review described above, Purchaser may withhold its approval in its reasonable discretion, and Seller may not execute or grant such Lease Event without Purchaser’s written approval.

Seller shall not apply any tenant or licensee security deposits on account of any alleged default by any tenant or licensee after the earlier of three (3) Business Days before the end of the Inspection Period and the date when Purchaser has delivered the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof unless Seller has terminated the applicable Lease or License Agreement and obtained possession of the demised or licensed premises. All tenant and licensee security deposits collected and not applied by Seller as of the Effective Date are set forth on Schedule 6.1.4 . Seller shall deliver to Purchaser three (3) Business Days before the end of the Inspection Period an update to Schedule 6.1.4 to reflect the current amount of all security deposits collected and not applied by Seller as of such date.

6.1.5 Insurance . Seller will not terminate or allow any insurance with respect to the Properties maintained by Seller or its affiliate to lapse unless replaced by equivalent coverage. Promptly upon Purchaser’s delivery of the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, Seller shall name Purchaser as an additional insured on all insurance maintained by Seller or its affiliates with respect to the Properties and shall provide to Purchaser evidence of same.

6.2 Casualty . If after the Effective Date and prior to the Closing any Property is damaged by fire or other casualty (a “ Casualty ”), Seller shall, promptly upon receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Casualty, (a) the tenant of such Property other than the Property commonly known as 1500/1600 Riveredge Parkway, Atlanta, GA (the “ IBM Property ”) is entitled to and elects to terminate its Lease with respect to such Property or (b) International Business Machines (“ IBM ”) is entitled to and elects to terminate its Lease with respect to the IBM Property (each a “ Casualty Tenant Termination

 

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Event ”), then Seller shall promptly upon receiving notice of such Casualty Tenant Termination Event notify Purchaser of the same (a “ Casualty Tenant Termination Notice ”). Within five (5) days after receipt of the Casualty Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), terminate this Agreement with respect to such Property, in which case the Purchase Price shall be reduced by the Allocated Purchase Price for such Property, or (ii) to acquire such Property notwithstanding the Casualty Tenant Termination Event. If (i) Purchaser elects to acquire such Property notwithstanding the Casualty Tenant Termination Event or fails to terminate this Agreement with respect to such Property within such five (5) day period, or (ii) such Casualty does not give rise to a Casualty Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, (1) Seller shall (A) assign to Purchaser, without representation or warranty by or recourse against Seller, all of Seller’s rights in and to any resulting insurance proceeds (including any rent loss insurance and rent abatement insurance applicable to any period beginning with the Closing Date) due Seller as a result of such Casualty, and (B) provide written confirmation from GECC that such insurance proceeds can be assigned to Purchaser and will be available after Closing to Purchaser to effectuate the needed repairs, (2) Purchaser shall assume full responsibility for all needed repairs (as between Purchaser and Seller, but subject to the terms of the applicable Lease with respect to any rights of the applicable tenant), and (3) Purchaser shall receive a credit at Closing for any deductible amount under such insurance policies to the extent not payable by the applicable tenant under the applicable Lease. Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to any Property and, as a result of such Casualty, the lender providing the Term Financing Commitment will not close the loan contemplated by the Term Financing Commitment with respect to such Property, GECC will not close the GE Bridge Loan with respect to such Property or GECC or Senior Lender (as applicable) will not close the Bridge Loan with respect to such Property (as applicable pursuant to Section 4.3.2), then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate with respect to such Property and the Purchase Price shall be reduced by the Allocated Purchase Price of such Property.

6.3 Condemnation . If after the Effective Date and prior to the Closing Seller receives notice of, or proceedings are instituted for, eminent domain with respect to any Property or any portion thereof (a “ Condemnation ”), Seller shall, promptly upon receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Condemnation, (a) the tenant of such Property other than the IBM Property is entitled to and elects to terminate its Lease with respect to such Property or (b) IBM is entitled to and elects to terminate its Lease with respect to the IBM Property (each a “ Condemnation Tenant Termination Event ”), then Seller shall promptly upon receiving notice of such Condemnation Tenant Termination Event notify Purchaser of the same (a “ Condemnation Tenant Termination Notice ”). Within five (5) days after receipt of the Condemnation Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), terminate this Agreement with respect to such Property, in which case the Purchase Price shall be reduced by the Allocated Purchase Price for such Property, or (ii) to acquire such Property notwithstanding the Condemnation Tenant Termination Event. If (i) Purchaser elects to acquire such Property notwithstanding the Condemnation Tenant Termination Event or fails to terminate this Agreement with respect to such Property within such five (5) day period, or (ii) such Condemnation does not give rise to a Condemnation Tenant Termination Event, then Purchaser shall proceed to Closing, and as of

 

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Closing, Seller shall assign to Purchaser, without representation or warranty by or recourse against Seller, all of Seller’s right, title and interest in and to any condemnation award and resulting insurance proceeds due as a result of such Condemnation (including any rent loss insurance and rent abatement insurance applicable to any period beginning with the Closing Date), and Purchaser shall have the sole right after the Closing (as between Purchaser and Seller, but subject to the terms of the applicable Lease with respect to any rights of the applicable tenant) to negotiate and otherwise deal with the condemning authority in respect of such Condemnation. Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to any Property and, as a result of such Condemnation, the lender providing the Term Financing Commitment will not close the loan contemplated by the Term Financing Commitment with respect to such Property, GECC will not close the GE Bridge Loan with respect to such Property or Senior Lender will not close the Bridge Loan with respect to such Property (as applicable pursuant to Section 4.3.2), then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate with respect to such Property and the Purchase Price shall be reduced by the Allocated Purchase Price of such Property.

6.4 Estoppel Certificates/SNDAs .

6.4.1 Purchaser and Seller acknowledge and agree that as of the Effective Date Seller has sent to each tenant (with a copy to Purchaser) to which space in the Improvements is leased a request for an estoppel certificate in the form approved by Purchaser (such estoppel certificates are referred to herein individually as, a “ Tenant Estoppel Certificate ”) and collectively as, the “ Tenant Estoppel Certificates ”). Purchaser acknowledges that it has approved the form of each Tenant Estoppel Certificate sent to each tenant as of the Effective Date. Seller shall not be obligated to expend any funds in connection with obtaining any such Tenant Estoppel Certificates, declare any default under any Lease or commence any legal action for enforcement of any Lease in order to obtain any such Tenant Estoppel Certificates. Seller shall copy Purchaser on the initial correspondence soliciting the Tenant Estoppel Certificates and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the tenants in connection with the tenants’ execution of the Tenant Estoppel Certificates. With respect to any executed Tenant Estoppel Certificate dated more than thirty (30) days prior to the Closing Date, Seller agrees, upon the request of Purchaser, to send to the tenant who executed such Tenant Estoppel Certificate a request for an updated Tenant Estoppel Certificate or a letter of no change to the executed Tenant Estoppel Certificate; provided, however, obtaining such updated Tenant Estoppel Certificate or letter of no change shall (i) not be a condition to Purchaser’s obligation to close pursuant to Section 7.2.2 and (ii) in no way delay the Closing, it being agreed by Purchaser that any Tenant Estoppel Certificate executed and delivered in the form approved by Purchaser regardless of the date executed by the applicable tenant shall satisfy Purchaser’s condition to close pursuant to Section 7.2.2 with respect to such tenant.

6.4.2 Upon receipt from Purchaser of drafts of estoppel certificates addressed to the parties listed on Schedule 6.4.2 (individually, a “ Third Party Estoppel Certificate ” and collectively, the “ Third Party Estoppel Certificates ”), Seller shall promptly send such Third Party Estoppel Certificates to the parties listed on Schedule 6.4.2 . Seller shall not be obligated to expend any funds in connection with obtaining any such Third Party Estoppel Certificates,

 

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declare any default under any agreement or commence any legal action for enforcement of any agreement in order to obtain any such Third Party Estoppel Certificates. Seller shall copy Purchaser on the initial correspondence soliciting the Third Party Estoppel Certificates and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the third parties in connection with the third parties’ execution of the Third Party Estoppel Certificates.

6.4.3 Seller shall promptly after the date on which Purchaser obtains the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment send to each tenant to which space in the Improvements is leased a request for a subordination, non-disturbance and attornment agreement substantially in the form executed by such tenant in connection with the closing of the GE Loan, or if any tenant did not execute a subordination, non-disturbance and attornment agreement in connection with the GE Loan, a subordination, non-disturbance and attornment agreement in a form otherwise approved by Purchaser (such subordination, non-disturbance and attornment agreements are referred to herein individually as, an “ SNDA ” and collectively as, the “ SNDAs ”). Notwithstanding the foregoing, Seller shall not be obligated to request an SNDA from any tenant of the IBM Property other than IBM and PBS&J. Seller shall not be obligated to expend any funds in connection with obtaining any such SNDAs, declare any default under any Lease or commence any legal action for enforcement of any Lease in order to obtain any such SNDAs. Seller shall copy Purchaser on the initial correspondence soliciting the SNDAs and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the tenants in connection with the tenants’ execution of the SNDAs.

6.5 Acknowledgments . Seller has previously requested acknowledgments from each tenant listed on Schedule 6.5 (each, a “ ROFO Tenant ” and collectively, the “ ROFO Tenants ”) that the rights of first refusal or rights of first offer to purchase the applicable Property set forth in such tenants’ respective Leases do not apply to Purchaser’s acquisition of the applicable Property pursuant to this Agreement (each, a “ ROFO Acknowledgment ” and collectively, the “ ROFO Acknowledgements ”). Purchaser acknowledges (i) that it has approved the form of each ROFO Acknowledgment sent to each tenant as of the Effective Date, (ii) that is has received and approved a copy of the ROFO Acknowledgement executed by each of IBM, Arbella Capital Corporation, Northrop Grumman Space & Mission, and Sybase Inc. and (iii) Purchaser will accept either a ROFO Acknowledgment or a Tenant Estoppel Certificate containing a ROFO Acknowledgment (forms of which Purchaser has reviewed and approved as of the Effective Date) executed by all other ROFO Tenants for purposes of satisfying the requirement set forth in Section 7.2.2(7) of this Agreement. Seller shall not be obligated to expend any funds in connection with obtaining any such ROFO Acknowledgments, declare any default under the applicable Lease or commence any legal action for enforcement of the applicable Lease in order to obtain any such ROFO Acknowledgments. Seller shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the ROFO Tenants in connection with the ROFO Tenants’ execution of the remaining ROFO Acknowledgments. If any ROFO Tenant exercises its right to purchase any Property, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall terminate with respect to such Property on the date of such notice, in which event the Purchase Price shall be reduced by the Allocated Purchase Price for such Property.

 

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ARTICLE 7

CLOSING

7.1 Closing . The consummation of the transaction contemplated herein (“ Closing ”) shall occur on the Closing Date at the offices of Escrow Agent (or such other location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record those closing documents which are to be recorded, and deliver originals or copies of the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.

7.2 Conditions to Parties’ Obligation to Close . In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder are conditioned upon the following:

7.2.1 Conditions to Seller’s Obligations to Close .

(1) Representations and Warranties . Purchaser’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date;

(2) Deliveries . As of the Closing Date, Purchaser shall have tendered all deliveries to be made by Purchaser at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Purchaser that would materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement; and

(4) Property . It shall be a condition to Seller’s obligation to close hereunder that this Agreement and the Harborside Purchase and Sale Agreement (as applicable) shall not have been terminated with respect to (x) more than three Properties or (y) any two of the Harborside, Goodyear (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Goodyear Lease and the CEVA Lease cover multiple Properties) or Northrop (McLean, VA) Properties; provided, however, that a termination of this Agreement with respect to a Property by reason of the exercise of a right to purchase such Property by a ROFO Tenant shall be disregarded for purposes of the application of the provisions of this Section 7.2.1(4). For clarification, the parties agree that while both this Agreement and the Harborside Purchase and Sale Agreement must both

 

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proceed towards Closing at the same time, or both terminate at the end of the Inspection Period together, it is possible for a closing condition under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect Harborside but proceed to closing under this Agreement.

7.2.2 Conditions to Purchaser’s Obligations to Close .

(1) Representations and Warranties . Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date, subject to the provisions of Sections 4.4 and 9.3. Notwithstanding Sections 4.4 and 9.3, Seller and Purchaser acknowledge and agree that Section 7.2.3 shall apply (subject to the limitations of Sections 7.2.1(4) and 7.2.2(9)) to any material change in the representations and warranties of Seller with respect to a particular Property due to any Updated Property Information or changes that are not a result of a breach by Seller or any of its covenants;

(2) Deliveries . As of the Closing Date, Seller shall have tendered all deliveries to be made by Seller at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement;

(4) Tenant Estoppel Certificates . Seller shall have delivered to Purchaser Tenant Estoppel Certificates from (A) each of the following tenants: The Goodyear Tire & Rubber Company, Sybase, Inc., WellPoint, Inc. (which WellPoint, Inc. Tenant Estoppel Certificate shall include an acknowledgement by WellPoint, Inc., in a form approved by Purchaser, that WellPoint, Inc.’s right of first refusal and/or right of first offer to purchase the Property leased by WellPoint, Inc. has terminated by its terms) and Northrop Grumman Information Technology, Inc. (collectively, the “ Prime Tenants ”), and (B) the tenants of single tenant buildings and tenants of more than 25,000 square feet in multi-tenanted buildings, in all cases not leased to the Prime Tenants, for those Properties which represent not less than seventy percent (70%) of the Purchase Price allocated to all portions of the Property not leased to the Prime Tenants (collectively, the “ Non-Prime Tenants ”) (this item 7.2.2(4)(B) is referred to herein as, the “ Estoppel Requirement ”). Notwithstanding the foregoing, to the extent the Estoppel Requirement has not been satisfied on or prior to the Closing Date (the “ Estoppel Shortfall ”), iStar shall execute and deliver, and Purchaser agrees to accept, estoppel certificates (“ Seller Estoppels ”) with respect to the Estoppel Shortfall, subject to the Seller Estoppel Cap, in the form attached hereto as Exhibit I , in which event such Seller Estoppels together with the Tenant Estoppel Certificates shall satisfy the Estoppel Requirement; provided, however,

 

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that (i) the Seller Estoppels shall not be subject to the “basket” or “cap” provisions with respect to Seller’s liability set forth in Section 9.3, (ii) the Seller Estoppels shall not represent more than twenty (20%) percent of the Estoppel Requirement (the “ Seller Estoppel Cap ”) and (iii) a Seller Estoppel shall in no event eliminate the need for Seller to deliver a ROFO Acknowledgment from all tenant from which a ROFO Acknowledgment otherwise is required. A response from a tenant which materially contradicts the information set forth in such tenant’s Lease or in the Exhibits attached hereto or in the representations of Seller set forth herein shall not constitute a Tenant Estoppel Certificate for purposes of this Section 7.2.2(4);

(5) Occupancy/Non Bankruptcy . It shall be a condition to Purchaser’s obligations to close hereunder that (a) as of the Closing Date, no tenant shall have terminated, or given notice of intent to terminate, its Lease, except with respect to a Casualty Tenant Termination Event or a Condemnation Tenant Termination Event and (b) from the end of the Inspection Period through the Closing Date, no tenant shall have vacated, abandoned or ceased operations at any Real Property, or filed for voluntary or involuntary bankruptcy or similar protection;

(6) Closing of GE Bridge Loan/Mezzanine Loan . If Purchaser has elected pursuant to Section 4.3.2 to proceed to Closing with (i) the GE Bridge Financing Commitment and has not elected thereafter to take an alternative financing, (A) the closing of the Mezzanine Loan simultaneously with the Closing and (B) the closing of the GE Bridge Loan on the Closing Date (unless the GE Bridge Loan fails to close as a result of (x) Purchaser’s uncured default under the GE Bridge Financing Commitment, (y) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (z) Purchaser’s failure to accept documentation for the GE Bridge Loan that is commercially reasonable for debt assumption transactions and implementation of such modifications to the GECC Loan as are more specifically set forth in the GE Bridge Financing Commitment) be conditions to Purchaser’s obligation to close hereunder or (ii) the Bridge Financing Commitment and has not elected thereafter to take an alternative financing, iStar being ready, willing and able to close the Mezzanine Loan on the Closing Date is a condition to Closing and, if the Bridge Loan closes, the closing of the Mezzanine Loan simultaneously therewith is a condition to Closing. In no event shall the closing of (w) the loan contemplated by the Term Financing Commitment, (x) the Bridge Loan or (y) any alternative financing be a condition of Purchaser’s obligation to close hereunder;

(7) ROFO Acknowledgments . It shall be a condition to Purchaser’s obligations to close hereunder that Seller shall have delivered the ROFO Acknowledgements, subject to the last sentence of Section 6.5 with respect to any ROFO Tenant that exercises its right to purchase any Property;

(8) Title Policies . It shall be a condition to Purchaser’s obligations to close hereunder that the Title Company shall have issued the Title Policies and Co-Insurance subject to, and in accordance, with Section 5.4;

 

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(9) Property . It shall be a condition to Purchaser’s obligation to close hereunder that this Agreement or the Harborside Purchase and Sale Agreement (as applicable) shall not have been terminated with respect to (x) more than three Properties or (y) any two of the Harborside, Goodyear (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Goodyear Lease and the CEVA Lease cover multiple Properties) or Northrop (McLean, VA) Properties; provided, however, that a termination of this Agreement with respect to a Property by reason of the exercise of a right to purchase such Property by a ROFO Tenant shall be disregarded for purposes of the application of the provisions of this Section 7.2.1(9). For clarification, the parties agree that while both this Agreement and the Harborside Purchase and Sale Agreement must both proceed towards Closing at the same time, or both terminate at the end of the Inspection Period together, it is possible for a closing condition under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect Harborside but proceed to Closing under this Agreement; and

(10) SNDAs . It shall be a condition to Purchaser’s obligation to close hereunder that Seller shall have delivered SNDAs from all tenants required by the terms of their respective Leases to provide SNDAs and all tenants whose Leases are not automatically subordinate to any financing on the applicable Property; provided, however, Seller shall not be obligated to deliver an SNDA from any tenant of the IBM Property other than IBM and PBS&J.

7.2.3 Failure to Satisfy Conditions . So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date (or such earlier date as is provided herein), subject to any applicable notice and cure periods provided in Sections 10.1 and 10.2, such party may, in its sole discretion: (a) terminate this Agreement with respect only to those Properties as to which the condition(s) to proceed have not been satisfied (subject to the limitations of Sections 7.2.1(4) and 7.2.2(9)); or (b) if the condition(s) to close have not been satisfied as to under Section 7.2.1(4) and 7.2.1(4) or where in this Agreement provides for a termination of this Agreement in its entirety, to terminate this Agreement in its entirety, in each case by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein), or elect to close notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. In the event such party elects to close, notwithstanding the non-satisfaction of such condition, said party shall be deemed to have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to close had knowledge at the Closing. In the event this Agreement is terminated in part with respect to certain Properties (subject to the limitations of Sections 7.2.1(4) and 7.2.2(9)), the Purchase Price shall be reduced by the Allocated Purchase Price for such Properties.

 

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7.3 Seller’s Deliveries in Escrow . As of or prior to the Closing Date, Seller shall deliver in escrow to Escrow Agent the following:

7.3.1 Deeds . A special or limited warranty deed in substantially the form of Exhibit B hereto, warranting title only against any party claiming by, through or under Seller, for each Real Property (individually, a “ Deed ” and collectively, the “ Deeds ”). Each Deed shall (i) be in form acceptable for recordation under the laws of the state where the applicable Real Property is located, (ii) include a list of the Permitted Exceptions to which the applicable conveyance shall be subject, (iii) be executed and acknowledged by Seller and (iv) convey to Purchaser Seller’s interest in the applicable Real Property. The Deed for each Property shall use as its legal description of such Property the description contained in Seller’s vesting deed for such Property. If such description differs from the description derived from the updated survey, Seller shall also deliver a quit-claim deed using the description derived from the updated survey.

7.3.2 Assignments . A Bill of Sale, Assignment and Assumption of Leases and Contracts in the form of Exhibit C hereto for each Property (individually, as “ Assignment ” and collectively, the “ Assignments ”). Each Assignment shall be executed and acknowledged by Seller, vesting in Purchaser, without warranty except as set forth herein, Seller’s right, title and interest in and to the property described therein free of any claims, except for the Permitted Exceptions to the extent applicable;

7.3.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local laws in connection with the conveyance of each Real Property;

7.3.4 FIRPTA . A Foreign Investment in Real Property Tax Act affidavit in the form of Exhibit D hereto executed by Seller;

7.3.5 Authority . Evidence of the existence and authority of Seller and of the authority of the persons executing documents on behalf of Seller reasonably satisfactory to First American;

7.3.6 Title Affidavits . A title affidavit in form reasonably required by First American as to the rights of tenants in occupancy, the status of mechanics’ liens and “gap” indemnities, and such other matters as the First American may reasonably require in order to issue the Title Policies (collectively, the “ Title Affidavits ”);

7.3.7 Additional Documents . Any additional documents that First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement);

7.3.8 Tenant Estoppel Certificates/Seller Estoppels . Such Tenant Estoppel Certificates as Seller shall have received and such Seller Estoppels as are necessary to satisfy the Estoppel Requirement, it being agreed that the failure of Seller to obtain any such Tenant Estoppel Certificates shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

 

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7.3.9 Third Party Estoppel Certificates . Such Third Party Estoppel Certificates as Seller shall have received, it being agreed that the failure of Seller to obtain any such Third Party Estoppel Certificates shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.10 ROFO Acknowledgments . Such ROFO Acknowledgments as Seller shall have received;

7.3.11 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Seller in Section 9.1 are true and accurate as of the Closing Date, subject to Section 4.4 and the first sentence of Section 9.3;

7.3.12 Updated Rent Roll . A Rent Roll updated to the Closing Date, or as close as possible; and

7.3.13 SNDAs . Such SNDAs as Seller shall have received.

7.4 Purchaser’s Deliveries in Escrow . As of or prior to the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the following:

7.4.1 Assignments . The Assignments, executed and acknowledged by Purchaser;

7.4.2 ERISA Letter . Intentionally Deleted.

7.4.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by applicable state and local laws in connection with the conveyance of each Real Property;

7.4.4 Authority . Evidence of the existence, organization and authority of Purchaser and of the authority of the persons executing documents on behalf of Purchaser reasonably satisfactory to First American;

7.4.5 Additional Documents . Any additional documents that Seller, Escrow Agent or First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement); and

7.4.6 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Purchaser in Section 9.2 are true and accurate as of the Closing Date.

 

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7.5 Closing Statements . As of or prior to the Closing Date, Seller and Purchaser shall deposit with Escrow Agent an executed closing statement consistent with this Agreement in the form required by Escrow Agent. Seller shall provide a draft of the same at least one week prior to the scheduled Closing Date.

7.6 Purchase Price . At or before 3:00 p.m. (Eastern Time) on the Closing Date, Purchaser shall deliver to Escrow Agent the Purchase Price, less the Earnest Money, plus or minus applicable prorations and any adjustment to the Purchase Price made in accordance with the terms of this Agreement, in immediate, same-day U.S. federal funds wired for credit into Escrow Agent’s escrow account, which funds must be delivered in a manner to permit Escrow Agent to deliver good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer); in the event that Escrow Agent is unable to deliver good funds to Seller or its designee prior to 4:00 p.m. (Eastern Time) on the Closing Date, then the closing statements and related prorations will be revised as necessary. To the extent that Escrow Agent is unable to provide the amount of interest constituting part of the Earnest Money up to the Closing Date, Escrow Agent shall promptly remit any such interest not applied against the Purchase Price to Purchaser after the Closing.

7.7 Possession . Seller shall deliver possession of the Property to Purchaser at the Closing subject only to the Permitted Exceptions.

7.8 Delivery of Books and Records . Within ten (10) Business Days after the Closing, Seller shall deliver to the offices of Purchaser: (i) original Lease Files; (ii) original Service Contracts and License Agreements, (iii) to the extent in Seller’s possession: (a) maintenance records and warranties; (b) plans and specifications; (c) licenses, permits and certificates of occupancy; (d) copies or originals of all books and records of account, contracts, and copies of correspondence with tenants and suppliers; (e) advertising materials; (f) booklets; and (g) keys.

7.9 Notice to Tenants . Seller and Purchaser shall each execute, and Purchaser shall deliver to each tenant immediately after the Closing, a notice regarding the sale in substantially the form of Exhibit G hereto, or such other form as may be required by applicable state law. This obligation on the part of Purchaser shall survive the Closing.

ARTICLE 8

PRORATIONS, DEPOSITS, COMMISSIONS

8.1 Prorations for Taxes . To the extent tenants are required to pay real and personal ad valorem taxes (“ Taxes ”) directly under their respective Leases, Taxes will not be prorated, and accordingly, Purchaser shall look solely to the tenants under their respective Leases for payment of all Taxes. To the extent tenants are not required to pay Taxes directly under their respective Leases, then the following shall apply with respect to the proration of Taxes:

8.1.1 If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing; and

8.1.2 Any additional Taxes relating to the year of Closing arising out of a change in ownership shall be assumed by Purchaser effective as of Closing and paid by Purchaser when due and payable, and Purchaser shall indemnify Seller from and against any and all such Taxes, which indemnification obligation shall survive the Closing.

 

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8.2 Prorations for Tenant-Paid Operating Expenses . To the extent tenants are required to pay operating costs and expenses of the Property (“ Operating Expenses ”) directly under their respective Leases, which Operating Expenses may include, without limitation, fees and assessments; prepaid expenses; obligations under Service Contracts; any assessments by private covenant; insurance; utilities; common area maintenance expenses; and other operating costs and expenses incurred in connection with the ownership, operation, maintenance and management of the Real Property, Operating Expenses will not be prorated, and accordingly, Purchaser shall look solely to the tenants under such Leases for payment of all Operating Expenses.

8.3 Prorations for Non-Tenant Paid Items . To the extent tenants are not required to pay Operating Expenses or Taxes directly under their respective Leases, but are required to escrow Operating Expenses or Taxes under their respective Leases and/or to reimburse their landlord for all or any portion of such Operating Expenses or Taxes, then the following items shall be prorated as of the Closing Date with all items of income and expense for such Property being borne by Purchaser from and after (and including) the Closing Date and Seller prior to the Closing Date:

8.3.1 Utilities . Purchaser shall take all steps necessary to effectuate the transfer of utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Seller shall ensure that all utility meters are read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company as of the Closing Date.

8.3.2 Tenant Receivables . Rents due from tenants under Leases and from tenants or licensees under License Agreements and Operating Expenses and Taxes payable by tenants under Leases and licenses under License Agreements (collectively, “ Tenant Receivables ”) and not collected by Seller as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the basis of the period for which the same is payable and if, as and when collected, as follows:

(a) Tenant Receivables and other income received from tenants under Leases, and/or tenants or licensees under License Agreements after Closing shall be applied in the following order of priority: (1) first, to payment of the current Tenant Receivables then due for the month in which the Closing Date occurs, which amount shall be apportioned between Purchaser and Seller as of the Closing Date as set forth in Section 8.3 hereof (with Seller’s portion thereof to be delivered to Seller); (2) second, to payment of Tenant Receivables first coming due after Closing but applicable to the period of time before Closing, (collectively, “ Unbilled Tenant Receivables ”), which amount shall be delivered to Seller; (3) third, to Tenant Receivables first coming due after Closing and applicable to the period of time after Closing, which amount shall be retained by Purchaser; and (4) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by Seller as of Closing (collectively, “ Uncollected Delinquent Tenant Receivables ”), which amount shall be delivered to Seller. Notwithstanding the foregoing, Seller shall have the right to pursue the collection

 

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of Uncollected Delinquent Tenant Receivables for a period of six (6) months after Closing without prejudice to Seller’s rights or Purchaser’s obligations hereunder, provided, however, Seller shall have no right to cause any such tenant or licensee to be evicted or to exercise any other “landlord” remedy (as set forth in such tenant’s Lease or licensee’s License Agreement) against such tenant other than to sue for collection. Any sums received by Purchaser to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to Seller, and Purchaser shall remit to Seller any such sums received by Purchaser to which Seller is entitled within ten (10) Business Days after receipt thereof less reasonable, actual costs and expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period from and after the Closing Date, Seller shall hold the same in trust for Purchaser and remit to Purchaser that portion of the monies so received by Seller to which Purchaser is entitled within ten Business Days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and agrees to (A) bill the same when billable and (B) cooperate with Seller to determine the correct amount of operating expenses and/or taxes due. Seller shall provide Purchaser with the necessary information to bill the same when billable and cooperate with Purchaser to maximize collection of the Unbilled Tenant Receivables. The provisions of this Section 8.3.2(a) shall survive the Closing.

(b) Purchaser acknowledges that Seller, as landlord under the Leases (and/or as licensor under the License Agreements) may be collecting from tenants under the Leases (and/or licensees under the License Agreements) additional rent relating to Operating Expenses or Taxes. To the extent that any such additional rent is paid by any tenants to the landlord under the Leases (and/or by any licensees to the licensor under the License Agreements) based on an estimated payment basis (whether monthly, quarterly, or otherwise) for which a future reconciliation of actual Operating Expenses or Taxes to estimated payments of Operating Expenses or Taxes is required to be performed at the end of a reconciliation period, Purchaser and Seller shall determine prior to the Closing whether such tenants and/or licensees have, in the aggregate, made an overpayment or underpayment of additional rent relating to Operating Expenses or Taxes (such determination to be based on a comparison of reasonable estimates of actual annual Operating Expenses and Taxes to the estimated payments being made by such tenants and/or licensees). If such determination indicates that such tenants and/or licensees have made an overpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall receive a credit toward the Purchase Price in the amount of such overpayment and Purchaser shall assume all obligations and liabilities relating to such overpayment. If, however, such determination indicates that such tenants and/or licensees have made an underpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall bill the tenants for the same promptly after the Closing and remit the same to Seller as and when collected. If such review indicates that it cannot be determined as of the Closing Date whether a tenant has overpaid or underpaid its additional rent relating to Operating Expenses or Taxes, Purchaser shall bill the tenant for the same at the end of the reconciliation period, and any overpayment with respect to the period prior to the Closing Date shall be paid by Seller to Purchaser or any underpayment with respect to the period prior to the Closing Date, when received from the tenant, shall

 

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be paid by Purchaser to Seller. Notwithstanding anything contained herein to the contrary, to the extent Purchaser or Seller receives a check or wire transfer from any tenant in the exact amount of the item payable by such tenant or referencing the item to which the check or wire transfer relates, such check or wire transfer shall be (i) applied directly to the applicable item or (ii) if such item was previously paid by Seller or Purchaser, reimbursed to Seller or Purchaser, as applicable.

8.4 Miscellaneous Prorations . Without duplication of, and to the extent not addressed by Sections 8.1, 8.2 and 8.3, all other items that are customarily subject to proration and adjustment, including without limitation, “Base Rent”, shall be prorated as of the Closing Date, it being agreed that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Property on the Closing Date.

8.5 Leasing Costs . Seller agrees to pay or discharge at or prior to Closing (and provide Purchaser with evidence of payment thereof), or provide Purchaser with a credit at Closing in the amount of, all leasing commissions, costs for tenant improvements, lease buyout costs, moving allowances, design allowances, legal fees and other costs, expenses and allowances incurred in order to induce a tenant to enter into a Lease or Lease renewal or extension or to induce a licensee to enter into a License Agreement (collectively, the “ Leasing Costs ”) that are indicated on Schedule 9.1.5 as being payable by Seller. Purchaser agrees to pay all Leasing Costs indicated on Schedule 9.1.5 as being payable by Purchaser as and when they become due. Seller shall have no obligation to pay, and as of Closing Purchaser shall assume, the obligation to pay, all Leasing Costs payable with respect to any option to renew or option to expand that has not been exercised prior to the Effective Date, which obligation shall survive the Closing. Additionally, as of Closing, Purchaser shall assume Seller’s obligations for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

8.6 Closing Costs . Closing costs shall be allocated between Seller and Purchaser in accordance with Section 1.2.

8.7 Final Adjustment After Closing . If final bills are not available or cannot be issued prior to Closing for any item being prorated under Sections 8.1, 8.3 and 8.5, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice. All such rights and obligations shall survive the Closing.

8.8 Tenant Deposits . All tenant and licensee security deposits collected and not applied by Seller (and interest thereon if required by law or contract) shall be transferred or credited to Purchaser at Closing. As of the Closing, Purchaser shall assume Seller’s obligations related to tenant and licensee security deposits, but only to the extent they are credited or transferred to Purchaser. Notwithstanding the foregoing provisions of this Section 8.8, deposits in the form of letters of credit will not be transferred or credited at the Closing. Rather, at the Closing, Seller shall deliver the letters of credit to Purchaser and will cooperate with Purchaser to effect a transfer of the letters of credit to Purchaser. Purchaser and Seller shall each pay one-half

 

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(1/2) of the costs and expenses (including transfer and other fees imposed by the issuer of the letter of credit) of transferring the letters of credit to Purchaser. In the event that prior to a transfer of any such letter of credit to Purchaser, Purchaser deems it advisable to draw on the same, Seller will cooperate in such presentation, and direct payment by virtue of any such presentation to Purchaser, and if Seller receives any such payment it will promptly deliver such payment in the form received and endorsed, without recourse, to Purchaser. Purchaser shall defend, indemnify and hold Seller harmless from all claims, causes of actions, actions, damages, costs, liabilities and expenses, including (without limitation) reasonable attorneys’ fees, that may arise out of any such presentation or related payment, other than by reason of any actions of Seller other than at the written direction of Purchaser. If any Security Deposit is held in a form other than cash or letter of credit, for example debt or equity securities, at Closing Seller shall deliver to Purchaser such security, or record evidence of Seller’s interest therein, and execute and deliver to Purchaser such documents and instruments as are necessary to vest in Purchaser the same ownership or security interest in such security deposit as held by Seller, but in no event less than what was required to be granted by the applicable tenant under and in accordance with the terms of the applicable Lease.

8.9 Commissions . Seller is responsible to Financial Advisor for a real estate fee at Closing in accordance with a separate agreement between Seller and Financial Advisor and at Closing Seller shall pay to Financial Advisor the entire real estate fee due under the separate agreement between Seller and Financial Advisor. Financial Advisor may share its commission with any other financial advisor or licensed broker involved in this transaction. Subject to Seller’s representations in this Section 8.9, under no circumstances shall Seller owe a commission or other compensation directly to any financial advisor, broker, agent or person other than Financial Advisor. No affiliate, subsidiary or party related in any way to Purchaser shall claim a commission or fee from Seller or Financial Advisor. Seller represents and warrants to Purchaser that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby other than Financial Advisor, and agrees to and does hereby indemnify and hold Purchaser harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Seller including Financial Advisor. Purchaser represents and warrants to Seller that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby, and agrees to and does hereby indemnify and hold Seller harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Purchaser excluding Financial Advisor. The foregoing indemnifications shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.

ARTICLE 9

REPRESENTATIONS AND WARRANTIES

9.1 Seller’s Representations and Warranties . Each Seller represents and warrants to Purchaser that:

9.1.1 Organization and Authority . Seller is validly existing, and in good standing in the state in which it was formed. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.

 

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9.1.2 No Conflicts . The execution, delivery and performance by Seller of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Seller or any portion of the Property is bound.

9.1.3 Consents; Binding Obligations . No approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Seller to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their terms.

9.1.4 Pending Actions . To Seller’s knowledge, except as set forth on Schedule 9.1.4 , there is no action or proceeding pending or threatened against Seller or relating to the applicable Property.

9.1.5 Leases, Guaranties, Tenants and Guarantors . Schedule 2.1.2 is a true, correct and complete list of all Leases, Guaranties, tenants and guarantors in effect as of the Effective Date. Seller has delivered or made available to Purchaser true, correct and complete copies of the Leases and the Guaranties. To Seller’s knowledge, no tenant or guarantor of any Lease has been released or discharged, voluntarily or involuntarily, or by operation of law, from any obligation related to such Lease. To Seller’s knowledge, Seller has not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Leases or Guaranties, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller has not received any notice from any tenant or guarantor under the Guaranties asserting any presently accrued defenses, offsets or disputes thereunder (other than with respect to the curtain wall on the Northrop Property as referenced in that certain Curtain Wall Snap Cover Failure Investigation prepared by Wiss, Janney, Elstner Associates, Inc. dated April 23, 2010, which Purchaser has knowledge of). The Rent Roll is true and correct in all material respects. Except as disclosed on Schedule 9.1.5 , there are no Leasing Costs or other obligations to brokers due or which will become due under any of the Leases, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement. Except as disclosed on Schedule 9.1.5 , all Leasing Costs have been fully paid and satisfied by Seller, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

 

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9.1.6 Service Contracts and License Agreements . To Seller’s knowledge, Schedule 9.1.6 is a true, correct and complete list of all Service Contracts and License Agreements with respect to the Property. To Seller’s knowledge, Seller has delivered true, correct and complete copies of the Service Contracts and License Agreements to Purchaser. To Seller’s knowledge, Seller has not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Service Contracts or License Agreements, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller has not received any notice from any party under the Service Contracts or License Agreements asserting any presently accrued defenses, offsets or disputes thereunder.

9.1.7 Notices from Governmental Authorities . To Seller’s knowledge, except as set forth on Schedule 9.1.7 or as may be reflected by the Property Documents or otherwise disclosed by Seller to Purchaser in writing, Seller has not received from any governmental authority written notice of any violation of any laws applicable (or alleged to be applicable) to the Real Property, or any part thereof, that has not been corrected.

9.1.8 Prohibited Persons and Transactions . Neither Seller nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.1.9 Operating Statements . The Operating Statements delivered by Seller or made available pursuant to Purchaser are true and complete copies of the operating statements for the Property which the Seller relies upon for the purposes of operating the Property.

9.1.10 Insurance . Schedule 9.1.10 is a true, correct and complete list of the insurance maintained by Seller with respect to the Property. Seller has not received any written notice or request from any insurance company requesting the performance of any work or alteration with respect to the Property, which have not been fully and completely corrected. Seller has not received written notice from any insurance company concerning any defects or inadequacies in the Property, which, if not corrected, would result in the termination of insurance coverage or increase its cost.

9.1.11 Employees . There are no employees of Seller employed in connection with the use, management, maintenance or operation of the Property whose employment will continue after the Closing Date. There is no bargaining unit or union contract relating to any employees of Seller.

 

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9.1.12 Third Party Agreements . To Seller’s knowledge, other than the Leases, the License Agreements, the Service Contracts, the Permitted Exceptions and the agreements set forth on Schedule 9.1.12 , there are no agreements related to the operation, maintenance or use of the Property. To Seller’s knowledge, except as set forth on Schedule 9.1.12 , Seller is not in default of, and no other party is in default of, any of its obligations under any of the agreements set forth on Schedule 9.1.12 , and there is no event which, with the giving of notice or passage of time, or both, would be a default thereunder.

9.1.13 Seller’s Representatives . Seller’s Representatives are the individuals involved in supervising Seller’s ownership, operation, and maintenance of the Properties, have knowledge of the operation and maintenance of the Properties and have reviewed the representations of Seller set forth in, and the schedules and exhibits referenced in, this Section 9.1.

9.1.14 Subleases . Schedule 9.1.14 is a true, correct and complete list of all subleases covering the Real Property acknowledged, or consented to, by Seller and such additional subleases as to which Seller has knowledge of.

9.2 Purchaser’s Representations and Warranties . Purchaser represents and warrants to Seller that:

9.2.1 Organization and Authority . Purchaser is validly existing as a limited liability company in good standing in the State of Delaware. Subject to obtaining approval of Purchaser’s Board of Directors prior to Purchaser’s delivery of the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, (a) Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby, and (b) this Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2 No Conflicts . The execution, delivery and performance by Purchaser of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Purchaser is bound.

9.2.3 Consents; Binding Obligations . Except as set forth in Section 9.2.1, (a) no approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Purchaser to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Purchaser to consummate the transaction contemplated hereby, and (b) this Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms.

 

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9.2.4 Pending Actions . There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.2.5 ERISA . (a) Purchaser is neither (i) an “employee benefit plan” (as defined in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended (“ ERISA ”)) which is subject to Title I of ERISA (an “ ERISA Plan ”), nor (ii) a “plan” (as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) which is subject to Section 4975 of the Code (a “ Code Plan ”); (b) the assets of Purchaser do not constitute “plan assets” (as defined in Section 3(42) of ERISA) of one or more ERISA Plans or Code Plans (“ Plan Assets ”) because, at the time of the Closing, the stock of Purchaser’s parent constitutes “publicly offered securities” (as defined in 29 C.F.R. Section 2510.3-101(b)(2)), which parent owns one hundred percent (100%) of the issued and outstanding equity of Purchaser; (c) Purchaser is not using Plan Assets in the performance or discharge of its obligations under this Agreement; (d) Purchaser is not a “governmental plan” (within the meaning of Section 3(32) of ERISA) and assets of Purchaser do not constitute plan assets of one or more such plans; and (e) transactions by or with Purchaser are not in violation of state statutes applicable to Purchaser regulating investments of and fiduciary obligations with respect to governmental plans.

9.2.6 Prohibited Persons and Transactions . Neither Purchaser nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.2.7 Availability of Funds . Subject to obtaining the financing contemplated by either (x) the Term Financing Commitment, (y) the GE Bridge Loan and the Mezzanine Loan or (z) the Bridge Loan and the Mezzanine Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.

9.3 Survival of Representations and Warranties . The representations and warranties set forth in this ARTICLE 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean, (A) with respect to all Properties, the actual knowledge of the following persons with respect to all Properties: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, and Carrie Crain, Vice President,

 

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and (B) with respect to each Property, the actual knowledge of the applicable persons whose names are set forth opposite each Property on Schedule 9.3 (the persons identified in the foregoing items (A) and (B) are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do not have but could have obtained through further investigation or inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4 of the Harborside Purchase and Sale Agreement, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Harborside Purchase and Sale Agreement) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate), (i) equals or exceeds (A) $1,000,000 if such breach relates to a Property with an Allocated Purchase Price of less than $50,000,000, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $1,000,000 and for all such damage above $1,000,000 with respect to such Property, or (B) $2,000,000 if such breach relates to a Property with an Allocated Purchase Price equal to or greater than $50,000,000, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $2,000,000 and for all such damage above $2,000,000 with respect to such Property, or (ii) without duplication of any claims made pursuant to subclause (i) of this clause (3), equals or exceeds $5,000,000 with respect to all Properties (including damages on account of breaches by Harborside Seller under the Harborside Purchase and Sale Agreement), in which event Seller shall be liable to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to all Properties, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement, any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 of the Harborside Purchase and Sale Agreement and other than the Seller Estoppels and Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of Harborside Seller to Purchaser pursuant to Section 9.3 of the Harborside Purchase and Sale Agreement will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Property and the Harborside Membership Interests and (b) there shall be no threshold or limitation or limitation on

 

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survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by ARTICLE 10.

ARTICLE 10

DEFAULT AND REMEDIES

10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder, or under the Harborside Purchaser and Sale Agreement, at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Harborside Purchase and Sale Agreement, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Harborside Purchase and Sale Agreement, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or Harborside Seller (as applicable) or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Property hereunder or the Harborside Membership Interests pursuant to the Harborside Purchase and Sale Agreement), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as a penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

 

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10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Harborside Seller defaults in its obligations under the Harborside Purchase and Sale Agreement, at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Harborside Purchase and Sale Agreement, Harborside Seller’s, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Harborside Purchase and Sale Agreement and the first Sentence of Section 9.3 hereof and of the Harborside Purchase and Sale Agreement) and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder or Harborside Seller fails to consummate the sale of Harborside Membership Interests under the Harborside Purchase and Sale Agreement), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement in its entirety by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, in which event Seller shall be liable to Purchaser for its out of pocket expenses incurred in connection with the transaction contemplated hereby, but not to exceed $1,700,000.00, (b) terminate this Agreement in part with respect to the Properties with respect to which Seller’s representations or warranties or covenants are breached (subject to Sections 7.2.1(4) and 7.2.2(9)), in which event the Purchase Price shall be reduced by the Allocated Purchase Price for such Properties, (c) enforce specific performance to consummate the sale of the Property hereunder, or (d) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE SELLER ESTOPPELS AND/OR THE MEZZANINE LOAN, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3 Attorneys’ Fees . In the event either party hereto employs an attorney in connection with claims by one party against the other arising from the operation of this Agreement, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in connection with such claims.

10.4 Other Expenses . If this Agreement is terminated due to the default of a party, then the defaulting party shall pay any fees or charges due to Escrow Agent for holding the Earnest Money as well as any escrow cancellation fees or charges and any fees or charges due to the Title Company for preparation and/or cancellation of the Title Commitments.

 

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ARTICLE 11

DISCLAIMERS, RELEASE AND INDEMNITY

11.1 Disclaimers By Seller . Except as expressly set forth in this Agreement and/or the Closing documents, it is understood and agreed that Seller and Seller’s agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title (other than Seller’s special warranty of title to be contained in the Deeds), (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the Property or any portion thereof including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (m) the condition or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Property, (p) the potential for further development of the Property, (q) the merchantability of the Property or fitness of the Property for any particular purpose, (r) the truth, accuracy or completeness of the Property Documents or Updated Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Property.

11.2 Sale “As Is, Where Is” . Purchaser acknowledges and agrees that upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept the Property “ AS IS, WHERE IS, WITH ALL FAULTS ,” except to the extent expressly provided otherwise in this Agreement and any document executed by Seller and delivered to Purchaser at Closing. Except as expressly set forth in this Agreement or such Closing documents, Purchaser has not relied and will not rely on, and Seller has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller, or any property manager, real estate broker, financial advisor, agent or third party representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Purchaser

 

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represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property and shall make an independent verification of the accuracy of any documents and information provided by Seller. Purchaser will conduct such inspections and investigations of the Property as Purchaser deems necessary, including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same. By failing to terminate this Agreement prior to the expiration of the Inspection Period, Purchaser acknowledges that Seller has afforded Purchaser a full opportunity to conduct such investigations of the Property as Purchaser deemed necessary to satisfy itself as to the condition of the Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser hereby represents and warrants to Seller that: (a) Purchaser is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Purchaser is purchasing the Property for business, commercial, investment or other similar purpose and not for use as Purchaser’s residence. Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Seller.

11.3 Seller Released from Liability . Purchaser acknowledges that it will have the opportunity to inspect the Property during the Inspection Period, and during such period, observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Property and adjacent areas as Purchaser deems necessary, and, except as set forth herein or in any Closing document, Purchaser hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, whether arising before or after the Effective Date, and liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“ CERCLA ”), regarding the condition, valuation, salability or utility of the Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property). Except as set forth herein or in any closing documents, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property is or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property,

 

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including, without limitation, the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, whether arising before or after the Effective Date. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

11.4 “ Hazardous Materials” Defined . For purposes hereof, “ Hazardous Materials ” means “Hazardous Material,” “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any other substances regulated because of their effect or potential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, and infectious materials.

11.5 Intentionally Deleted .

11.6 Survival . The terms and conditions of this ARTICLE 11 shall expressly survive the Closing, and shall not merge with the provisions of any closing documents.

Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth above.

ARTICLE 12

MISCELLANEOUS

12.1 Parties Bound; Assignment . This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto. Purchaser may, at Purchaser’s sole cost and expense and at no cost or expense to Seller, assign its rights under this Agreement in whole or in part with respect to any Property upon the following conditions: (a) the assignee of Purchaser must be (i) an entity controlling, controlled by, or under common control with Purchaser or (ii) an entity advised by an affiliate of Purchaser’s advisor, Dividend Capital Total Advisors LLC, (b) all of the Earnest Money must have been delivered in accordance herewith, (c) the Inspection Period shall have (or be deemed to have) ended, (d) the assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser shall remain primarily liable for the performance of Purchaser’s obligations, (e) a copy of the fully executed written assignment and assumption agreement shall be delivered to Seller at least five (5) Business Days prior to Closing, (f) the requirements in Section 12.17 are satisfied and (g) such assignment shall in no event delay the Closing.

 

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12.2 Headings . The article, section, subsection, paragraph and/or other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.

12.3 Invalidity and Waiver . If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.

12.4 Governing Law . This Agreement shall be governed in all respects, including validity, construction, interpretation and effect, by the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Each of Purchaser and Seller hereby (i) irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State, City and County of New York for the purpose of any action or proceeding arising out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a New York state court or federal court located in the State, City and County of New York. Each of Purchaser and Seller hereby consents to and grants any such court jurisdiction over the person of such party and over the subject matter of any such dispute and agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 12.10, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof on such party.

12.5 Survival . The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing (other than any unfulfilled closing conditions which have been waived or deemed waived by the other party) shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

12.6 Entirety and Amendments . This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property, except that letter of intent dated April 2, 2010 between iStar Financial Inc., on behalf of Seller, and Purchaser shall survive the execution of this Agreement to the extent of the exclusivity obligations and covenants under such letter. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.

12.7 Time . Time is of the essence in the performance of this Agreement.

 

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12.8 Intentionally Omitted .

12.9 No Electronic Transactions . The parties hereby acknowledge and agree this Agreement shall not be executed, entered into, altered, amended or modified by electronic means. Without limiting the generality of the foregoing, the parties hereby agree the transactions contemplated by this Agreement shall not be conducted by electronic means, except as specifically set forth in the “Notices” section of this Agreement.

12.10 Notices . All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.3. Any such notices shall, unless otherwise provided herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified and addressed to the party to be notified, with return receipt requested, (b) by overnight delivery using a nationally recognized overnight courier, (c) by personal delivery, or (d) by Portable Document Format (PDF) so long as a copy thereof is also sent by one of the other delivery methods set forth in Sections 12.10(a), (b) or (c). Notice given in accordance herewith for all permitted forms of notice other than by electronic mail, shall be effective upon the earlier to occur of actual delivery to the address of the addressee or refusal of receipt by the addressee. In no event shall this Agreement be altered, amended or modified by electronic mail or electronic record. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Notices given by counsel to the Purchaser shall be deemed given by Purchaser and notices given by counsel to the Seller shall be deemed given by Seller.

12.11 Construction . The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

12.12 Calculation of Time Periods; Business Day . Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at midnight local time in New York, New York. As used herein, the term “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday for national banks in the City of New York, New York or Colorado.

12.13 Execution in Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.

12.14 Recordation . Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent of Seller shall constitute a default hereunder by Purchaser,

 

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whereupon Seller shall have the remedies set forth in Section 10.1 hereof. In addition to any such remedies, Purchaser shall be obligated to execute an instrument in recordable form releasing this Agreement or memorandum or affidavit, and Purchaser’s obligations pursuant to this Section 12.14 shall survive any termination of this Agreement as a surviving obligation.

12.15 Further Assurances . In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to Purchaser.

12.16 Discharge of Obligations . The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive Closing.

12.17 ERISA . Under no circumstances shall Purchaser have the right to assign this Agreement to any person or entity owned or controlled by an “employee benefit plan” (as defined in Section 3(3) of ERISA) if Seller’s sale of the Property to such person or entity would, in the reasonable opinion of Seller’s ERISA advisors or consultants, create or otherwise cause a “prohibited transaction” under ERISA or any other applicable law with an effect similar to that of Section 406 of ERISA including, but not limited to, Section 4975 of the Code (each such law, a “ Similar Law ”). In the event Purchaser assigns this Agreement or transfers any ownership interest in Purchaser, and such assignment or transfer would make the consummation of the transaction hereunder a “prohibited transaction” under ERISA or any Similar Law and would therefore either (a) necessitate the termination of this Agreement, or (b) cause Seller to incur liability under ERISA or such Similar Law if the transaction were consummated, then, in either case, notwithstanding any contrary provision which may be contained herein, Seller shall have the right to terminate this Agreement. Anything in this Section 12.17 to the contrary notwithstanding, Seller shall have no right to terminate this Agreement under this Section 12.17 if Purchaser’s assignee expressly reaffirms in a writing addressed to Seller the representation in Section 9.2.5.

12.18 No Third Party Beneficiary . The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing, except that a tenant of the Property may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

12.19 Reporting Person . Purchaser and Seller hereby designate First American as the “reporting person” pursuant to the provisions of Section 6045(e) of the Internal Revenue Code of 1986, as amended.

 

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12.20 Post-Closing Access . From and after the Closing, the Purchaser will, at Seller’s sole cost and expense, permit Seller and Seller’s agents and representatives access (and will permit copying of materials pertaining to the period prior to the Closing), during business hours from time to time, to the Lease Files and other Property-related information upon reasonable advance notice to the Purchaser. This Section 12.20 shall survive the Closing.

12.21 Waiver of Jury Trial . SELLER AND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN SELLER AND PURCHASER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

12.22 Information and Audit Cooperation . Within 75 days after the Closing Date, Seller, at Purchaser’s sole cost and expense and at no cost or expense to Seller, shall allow Purchaser’s auditors access to the books and records of Seller relating to the operation of the Properties for the two year period prior to the Closing Date to enable Purchaser to comply with any financial reporting requirements applicable to Purchaser, upon at least three (3) Business Days prior written notice to Seller. In addition, Seller shall provide Purchaser’s designated independent auditors a representation letter regarding the books and records of the Properties in substantially the form attached hereto as Exhibit H .

12.23 Bulk Sales Laws . Seller shall (i) comply with the bulk transfer requirements of the states in which the Property is located, (ii) keep Purchaser apprised of Seller’s compliance with such requirements and (iii) indemnify, defend and hold Purchaser harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature which arise out of the failure of Seller to so comply with such requirements.

12.24 Radon . The following statements apply to any Property located in the State of Florida: (A) Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. (B) Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. (C) Additional information regarding radon and radon testing may be obtained from your county health department. (D) Note: This provision is provided for informational purposes pursuant to section 404.056(6), Florida Statutes.

[SIGNATURE PAGES, SCHEDULES AND EXHIBITS TO FOLLOW]

 

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SIGNATURE PAGE TO AGREEMENT OF

PURCHASE AND SALE

BY AND BETWEEN

THE ENTITIES SET FORTH ON SCHEDULE 1.1.1 ,

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below.

 

PURCHASER :   
TRT ACQUISITIONS LLC , a Delaware limited liability company   
By:    DCTRT Real Estate Holdco LLC, Its Sole Member   
   By:    Dividend Capital Total Realty Operating Partnership LP, Its Sole Member   
      By:    Dividend Capital Total Realty Trust Inc., Its General Partner   
         By:   

/s/ GREG MORAN

  
         Name:   

Greg Moran

  
         Title:   

SVP

  
         Date: May 3, 2010   

SELLER :

iSTAR CTL SOUTH HAVANA – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL WATERVIEW – DALLAS LLC , a Delaware

limited liability company

iSTAR CTL SHADELANDS – WALNUT CREEK LLC , a

Delaware limited liability company

iSTAR CTL NORTH GLENVILLE – RICHARDSON LLC ,

a Delaware limited liability company

iSTAR CTL SHEILA – COMMERCE LLC , a Delaware

limited liability company

 

PURCHASE AND SALE AGREEMENT


iSTAR CTL COLUMBIA – RICHFIELD LLC , a

Delaware limited liability company

iSTAR CTL COTTONWOOD – MILPITAS LLC , a

Delaware limited liability company

iSTAR CTL NORTH FAIRWAY DRIVE – VERNON

HILLS LLC , a Delaware limited liability company

iSTAR CTL DOOLITTLE – REDONDO BEACH LLC , a

Delaware limited liability company

iSTAR CTL CROWN COLONY – QUINCY LLC , a

Delaware limited liability company

iSTAR CTL RUE FERRARI – SAN JOSE LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE CENTER DRIVE –

NEWBURY PARK LLC , a Delaware limited liability

company

iSTAR CTL COLUMBIA – CAMPBELLSVILLE LLC , a

Delaware limited liability company

iSTAR CTL SUNSET HILLS – RESTON LLC , a

Delaware limited liability company

iSTAR CTL EAGLE LLC , a Delaware limited liability

company

iSTAR CTL SYLVAN WAY – PARSIPPANY LLC , a

Delaware limited liability company

iSTAR CTL INVERNESS – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE DRIVE – DIXON LLC , a

Delaware limited liability company

iSTAR CTL RIVEREDGE SUMMIT – ATLANTA LLC ,

a Delaware limited liability company

iSTAR CTL CONNECTION – IRVING LLC , a Delaware

limited liability company

 

PURCHASE AND SALE AGREEMENT


iSTAR CTL CHARLESTON – MOUNTAIN VIEW LLC ,

a Delaware limited liability company

iSTAR CTL DUBLIN LLC , a Delaware limited liability

company

iSTAR GT, L.P. , a Delaware limited partnership

iSTAR NG LP , a Delaware limited partnership

iSTAR CTL MAPLE – EL SEGUNDO LLC , a Delaware

limited liability company

iSTAR CTL SW 80 – PLANTATION LLC , a Delaware

limited liability company

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date: May 3, 2010

AGREED TO FOR PURPOSES OF SECTIONS 4.3.2

AND 7.2.2(4):

iSTAR FINANCIAL INC. , a Maryland corporation

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date: May 3, 2010

 

PURCHASE AND SALE AGREEMENT


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited under this Agreement and the interest earned thereto, in escrow, and shall disburse the Earnest Money, and the interest earned thereon, pursuant to the provisions of this Agreement.

 

FIRST AMERICAN TITLE INSURANCE COMPANY
By:  

 

Name:  

 

Title:  

 

Date:  

 


LIST OF SCHEDULES
Schedule 1.1.1       Sellers and Properties
Schedule 1.1.3       Allocated Purchase Price
Schedule 1.2       Transfer Tax Responsibility
Schedule 2.1.2       Leases, Guaranties, Tenants and Guarantors
Schedule 2.1.3       List of Excluded Personal Property
Schedule 4.3.2       Terms of Bridge Loan and Mezzanine Loan
Schedule 6.1.4       Security Deposits
Schedule 6.4.2       Third Parties
Schedule 6.5       ROFO Tenants
Schedule 9.1.4       Pending Actions
Schedule 9.1.5       Leasing Costs
Schedule 9.1.6       Service Contracts and License Agreements
Schedule 9.1.7       Notices from Governmental Authorities
Schedule 9.1.10       Insurance Coverages
Schedule 9.1.12       Third Party Agreements
Schedule 9.1.14       Subleases
Schedule 9.3       Seller’s Representatives

 

LIST OF EXHIBITS
Exhibit A       Legal Descriptions of Land
Exhibit B       Form of Special Warranty Deed
Exhibit C       Form of Bill of Sale, Assignment and Assumption of Leases and Contracts
Exhibit D       Form of FIRPTA Certificate
Exhibit E       INTENTIONALLY DELETED
Exhibit F       INTENTIONALLY DELETED
Exhibit G       Form of Notice to Tenants
Exhibit H       Form of Audit Letter
Exhibit I       Form of Seller Estoppel

Exhibit 2.1.1

FIRST AMENDMENT TO

PURCHASE AND SALE AGREEMENT

(32 Properties)

THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 11th day of May, 2010, by and between Seller and Purchaser.

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Purchase and Sale Agreement dated May 3, 2010 (the “Agreement”), relating to the sale and purchase of the thirty-two (32) properties described therein. All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE, in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

A G R E E M E N T

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Harborside Purchase and Sale Agreement . Section 1.1.15 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.15 “Harborside Purchase and Sale Agreement”: That certain Member Interest Purchase and Sale Agreement between Purchaser and Harborside Seller dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement dated as of May 11, 2010.”

3. Inspection Period . Section 1.1.10 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.10: “Inspection Period”: The period beginning on the Effective Date and ending on May 21, 2010, subject to extension as provided in Section 6.1.4(1).”

4. Financing . Purchaser acknowledges that there shall be no Financing Commitment Extension Period, and all references thereto in Section 4.3.2 shall be deemed null and void and of no further effect.

5. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

6. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Signature page follows]


IN WITNESS WHEREOF, Purchaser and Seller have executed this Amendment as of the date set forth above.

PURCHASER :

 

  TRT ACQUISITIONS LLC, a Delaware limited liability company
  By:        DCTRT Real Estate Holdco LLC, Its Sole Member
     By:        Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
        By:        Dividend Capital Total Realty Trust Inc., Its General Partner
           By:  

/s/ GREG MORAN

  
           Name:  

Greg Moran

  
           Title:  

SVP

  

SELLER :

iSTAR CTL SOUTH HAVANA – ENGLEWOOD LLC, a

Delaware limited liability company

iSTAR CTL WATERVIEW – DALLAS LLC, a

Delaware limited liability company

iSTAR CTL SHADELANDS – WALNUT CREEK LLC, a

Delaware limited liability company

iSTAR CTL NORTH GLENVILLE – RICHARDSON LLC, a

Delaware limited liability company

iSTAR CTL SHEILA – COMMERCE LLC, a

Delaware limited liability company

iSTAR CTL COLUMBIA – RICHFIELD LLC, a

Delaware limited liability company

iSTAR CTL COTTONWOOD – MILPITAS LLC, a

Delaware limited liability company

iSTAR CTL NORTH FAIRWAY DRIVE – VERNON HILLS LLC, a

Delaware limited liability company

iSTAR CTL DOOLITTLE – REDONDO BEACH LLC, a

Delaware limited liability company


iSTAR CTL CROWN COLONY – QUINCY LLC, a

Delaware limited liability company

iSTAR CTL RUE FERRARI – SAN JOSE LLC, a

Delaware limited liability company

iSTAR CTL CORPORATE CENTER DRIVE – NEWBURY PARK LLC, a

Delaware limited liability company

iSTAR CTL COLUMBIA – CAMPBELLSVILLE LLC, a

Delaware limited liability company

iSTAR CTL SUNSET HILLS – RESTON LLC, a

Delaware limited liability company

iSTAR CTL EAGLE LLC, a Delaware limited liability

company

iSTAR CTL SYLVAN WAY – PARSIPPANY LLC, a

Delaware limited liability company

iSTAR CTL INVERNESS – ENGLEWOOD LLC, a

Delaware limited liability company

iSTAR CTL CORPORATE DRIVE – DIXON LLC, a

Delaware limited liability company

iSTAR CTL RIVEREDGE SUMMIT – ATLANTA LLC, a

Delaware limited liability company

iSTAR CTL CONNECTION – IRVING LLC, a Delaware

limited liability company

iSTAR CTL CHARLESTON – MOUNTAIN VIEW LLC, a

Delaware limited liability company

iSTAR CTL DUBLIN LLC, a Delaware limited liability

company

iSTAR GT, L.P., a Delaware limited partnership

iSTAR NG LP, a Delaware limited partnership

iSTAR CTL MAPLE – EL SEGUNDO LLC, a Delaware

limited liability company


iSTAR CTL SW 80 – PLANTATION LLC, a Delaware

limited liability company

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

AGREED TO:

iSTAR FINANCIAL INC., a Maryland corporation

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE

COMPANY

By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.1.2

SECOND AMENDMENT TO

PURCHASE AND SALE AGREEMENT

(32 Properties)

THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 21st day of May, 2010, by and between Seller and Purchaser.

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Purchase and Sale Agreement, dated as of May 3, 2010, relating to the sale and purchase of the thirty-two (32) properties described therein, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010 (as amended, the “Agreement”). All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE, in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

A G R E E M E N T

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Closing Date . Section 1.1.11 of the Agreement is hereby amended and restated in its entirety to read as follows:

“1.1.11 “Closing Date”: June 24, 2010, or such earlier date as may be agreed to in writing by Purchaser and Seller.”

3. Harborside Purchase and Sale Agreement . Section 1.1.15 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.15 “Harborside Purchase and Sale Agreement”: That certain Member Interest Purchase and Sale Agreement between Purchaser and Harborside Seller, dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010.”

4. Properties . The IBM Property shall no longer be part of the transaction contemplated by the Agreement. The Agreement, including all Schedules thereto, is hereby amended by deleting all references to IBM and the IBM Property.


5. Purchase Price . The Purchase Price, as defined in Section 1.1.3 of the Agreement, is hereby amended to $ 1,137,500,000.00. Schedule 1.1.3 to the Agreement is hereby amended and restated in its entirety as set forth on Schedule 1.1.3 attached hereto. Before the date that is ten (10) calendar days prior to the Closing Date, Purchaser shall have the right to reallocate the Purchase Price among the Properties, in which event Purchaser and Seller shall enter into a further amendment to the Agreement solely to reflect the further revised Schedule 1.1.3; provided, however, in no event shall any such reallocation of the Purchase Price reduce the Allocated Purchase Price of the Properties leased by Google, Inc. (collectively, the “Google Property”) below $90,000,000.00. The Google Property and, if the DirecTV, Inc. ROFO Offer (as hereinafter defined) is sent, the Property leased by DirecTV, Inc. (the “DirecTV Property), are each referred to herein individually as, a “ROFO Property”. Purchaser acknowledges that Seller has sent Google, Inc. an offer to purchase the Google Property pursuant to the right of first offer to purchase provisions (the “Google ROFO Provisions”) set forth in the lease with Google, Inc. and that Seller may send DirecTV, Inc. an offer to purchase the DirecTV Property (the “DirecTV, Inc. ROFO Offer”) pursuant to the right of first offer to purchase provisions (the “DirecTV ROFO Provisions”; the Google ROFO Provisions and, if the DirecTV, Inc. ROFO Offer is sent, the DirecTV ROFO Provisions, are each referred to herein individually as the “ROFO Provisions”) set forth in the lease with DirecTV, Inc. Google, Inc. and, if the DirecTV, Inc. ROFO Offer is sent, DirecTV, Inc. are each referred to herein individually as a “ROFO Offer Tenant”. Notwithstanding anything in the Agreement to the contrary, if (i) a ROFO Offer Tenant elects to purchase a ROFO Property pursuant to the applicable ROFO Provisions and (ii) prior to the Closing Date, Seller and such ROFO Offer Tenant have entered into a definitive contract for the purchase and sale of the ROFO Property (the “ROFO Purchase Agreement”), then Purchaser shall proceed with the acquisition of the ROFO Property pursuant to the terms of the Agreement and, at Closing, Seller shall assign to Purchaser all of Seller’s right, title and interest in and to the ROFO Purchase Agreement and the ROFO Property will be conveyed to Purchaser subject to the ROFO Purchase Agreement; provided, however, (A) Purchaser and Seller shall cooperate in good faith in drafting the initial draft of the ROFO Purchase Agreement that is sent to such ROFO Offer Tenant and (B) Seller shall not enter into the proposed final ROFO Purchase Agreement without Purchaser’s prior written approval, which Purchaser, provided it has complied with the negotiation standard contained in the applicable ROFO Provisions, may withhold in its reasonable discretion. Purchaser shall provide Seller with its written approval or disapproval of the ROFO Purchase Agreement within three (3) business days of Seller’s written request therefor, which written request shall include a copy of the final ROFO Purchase Agreement. If Purchaser fails to provide Seller with Purchaser’s approval or disapproval of the ROFO Purchase Agreement within such time period, Purchaser shall be deemed to have approved the ROFO Purchase Agreement. Notwithstanding the foregoing, or anything contained in the Agreement to the contrary, if (x) a ROFO Offer Tenant elects to purchase a ROFO Property pursuant to the ROFO Provisions and (y) prior to the Closing Date, Seller and such ROFO Offer Tenant have failed to enter into a definitive contract for the purchase and sale of the ROFO Property notwithstanding their good faith efforts to do so, then Purchaser shall proceed with the acquisition of the ROFO Property pursuant to the terms of the Agreement and shall take the ROFO Property subject to the ROFO Offer Tenant’s rights under the applicable ROFO Provisions. Notwithstanding anything contained in the agreement to the contrary, Purchaser and Seller hereby agree that (a) ROFO Offer Tenants shall no longer constitute “ROFO Tenants” under the Agreement, (b) Seller shall no obligation to obtain and deliver ROFO Acknowledgments from a ROFO Offer Tenant and (c) the delivery of ROFO Acknowledgements from a ROFO Offer Tenant shall not be conditions to Purchaser’s obligation to close the transactions contemplated by the Agreement.

 

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6. Inspection Period . The parties agree that this Amendment constitutes the Due Diligence Waiver Notice contemplated by Section 4.3.1 of the Agreement.

7. Financing Commitments . Section 4.3.2 of the Agreement is hereby amended and restated in its entirety as follows:

“4.3.2 Purchaser has delivered to Seller copies of (a) a term sheet (the “Fixed Rate Loan Term Sheet”) between Wells Fargo Bank, National Association and Bank of America N.A. (collectively, the “Fixed Rate Lender”) and Purchaser, pursuant to which the Fixed Rate Lender will lend Purchaser $292,000,000, secured by fifteen Properties (the “Fixed Rate Loan”), (b) a term sheet (the “Floating Rate Loan Term Sheet”) between Wells Fargo Bank, National Association (the “Floating Rate Lender”) and Purchaser, pursuant to which the Floating Rate Lender will lend Purchaser $336,030,000, secured by sixteen Properties (the “Floating Rate Loan”), and (c) a letter (the “Harborside Term Sheet”) from New York Life Investment Management LLC (the “Harborside Lender”) to Purchaser’s consultant, pursuant to which the Harborside Lender would lend to the owner of Harborside $125,000,000, secured by Harborside (the “Harborside Loan”). Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement, and iStar shall, subject to the terms and provisions of this Section 4.3.2, provide the Mezzanine Loan simultaneously with the closing of the Floating Rate Loan and the Fixed Rate Loan; provided, however, that the closing of the Floating Rate Loan, the Fixed Rate Loan and the Harborside Loan on the Closing Date shall be conditions to Purchaser’s obligations to close hereunder and under the Harborside Purchase and Sale Agreement (unless the Floating Rate Loan, the Fixed Rate Loan and/or the Harborside Loan fail to close as a result of (A) Purchaser’s uncured default under the Floating Rate Term Sheet, the Fixed Rate Term Sheet and/or the Harborside Term Sheet, (B) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (C) Purchaser’s failure to accept documentation for the Fixed Rate Loan or the Floating Rate Loan that is commercially reasonable for such transactions). As used in this Section 4.3.2, “Mezzanine Loan” shall mean, collectively, a loan from iStar in the amount of $56,870,000 to the owners of the equity interests in the affiliates of Purchaser acquiring fee simple title to the Properties encumbered by the Fixed Rate Loan (the “Fixed Rate Properties Mezzanine Loan”) and a loan from iStar in the amount of $48,725,000 to the owners of the equity interests in the affiliates of Purchaser acquiring fee simple title to the Properties encumbered by the Floating Rate Loan (the “Floating Rate Properties Mezzanine Loan”). iStar shall provide the Floating Rate Properties Mezzanine Loan so long as (a) the terms of the Floating Rate Loan comply with the interest rate, amortization, prepayment and principal amount (which principal amount may be reduced to the extent this Agreement is terminated with respect to any Properties pursuant to its terms) terms of the Floating Rate Term Sheet and otherwise generally comply with the terms of the Floating Rate Term Sheet, and (b)

 

3


the Floating Rate Lender enters into an intercreditor agreement with iStar on commercially reasonable terms and provisions, and evidenced by commercially reasonable documents, which terms and provisions shall include, without limitation, the right but not the obligation of iStar to cure defaults under the Floating Rate Loan and following an event of default under the Floating Rate Properties Mezzanine Loan to foreclose on the collateral securing the Floating Rate Properties Mezzanine Loan. iStar shall provide the Fixed Rate Properties Mezzanine Loan so long as (a) the terms of the Fixed Rate Loan comply with the interest rate, amortization, prepayment and principal amount (which principal amount may be reduced to the extent this Agreement is terminated with respect to any Properties pursuant to its terms) terms of the Fixed Rate Term Sheet and otherwise generally comply with the terms of the Fixed Rate Term Sheet, and (b) the Fixed Rate Lender enters into an intercreditor agreement with iStar on commercially reasonable terms and provisions, and evidenced by commercially reasonable documents, which terms and provisions shall include, without limitation, the right but not the obligation of iStar to cure defaults under the Fixed Rate Loan and following an event of default under the Fixed Rate Properties Mezzanine Loan to foreclose on the collateral securing the Fixed Rate Properties Mezzanine Loan.”

8. Title Requirements . The Title Company has provided a letter to Purchaser dated May 21, 2010, pursuant to which the Title Company has agreed to issue the Title Policies in the form of the “Pro Forma Policies” (as defined therein), a copy of which is attached hereto as Exhibit J (the “FATCO Letter”). Notwithstanding anything to the contrary set forth in Section 5.3 of the Agreement, Seller hereby agrees to satisfy all of the “Seller Delivery Requirements” set forth in Section 1 of Exhibit B to the FATCO Letter and its portion of the “Joint Delivery Requirements” set forth in Section 3 of Exhibit B to the FATCO Letter on or before the Closing Date. The definition of “Permitted Exceptions” in the last sentence of Section 5.3 of the Agreement is hereby amended and restated as follows:

“The term “Permitted Exceptions” shall mean the exceptions to title set forth in the Pro Formas Policies as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser.”

9. Casualty . Section 6.2 of the Agreement is hereby modified as follows:

(a) clause (B) of the fourth sentence of Section 6.2 of the Agreement is hereby deleted in its entirety; and

(b) the last sentence of Section 6.2 of the Agreement is hereby amended and restated in its entirety as follows:

“Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to any Property and, as a result of such Casualty, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the

 

4


Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate with respect to such Property and the Purchase Price shall be reduced by the Allocated Purchase Price of such Property.”

10. Condemnation . (a) Notwithstanding anything to the contrary in Section 6.3 of the Agreement, the parties acknowledge that a deposit in the amount of $77,400 is being held in an interest-bearing account by the Registry of the Court with respect to the Aurora, Colorado, Property occupied by CEVA, pursuant to that certain Order Granting Immediate Possession entered on April 15, 2010 by the District Court, Adams County, Colorado in Case No. 2010CV170, entitled Public Services Company of Colorado v. iStar CTL Eagle, LLC, et a (the “CEVA Condemnation Action”). If an award in the CEVA Condemnation Action is paid to Seller prior to Closing, then Seller shall pay such award, after deducting all of Seller’s out-of-pocket costs, including, without limitation, all attorneys’ fees, incurred in connection with CEVA Condemnation Action, but subject to the provisions of the Lease with CEVA (collectively, the “Condemnation Costs”), to Purchaser at Closing, subject to the terms of the Lease with CEVA with respect to any rights of CEVA to such award. If said award is not paid to Seller prior to Closing, then (i) at Closing, Seller shall assign to Purchaser, without representation or warranty by or recourse against Seller, all of Seller’s right, title and interest in and to such deposit and any award, subject to the terms of the Lease with CEVA with respect to any rights of CEVA to such award and (ii) promptly following Closing, Seller shall notify Purchaser of Seller’s Condemnation Costs. Within five (5) calendar days of Purchaser’s receipt of such award, Purchaser shall notify Seller of Purchaser’s receipt of such award and reimburse Seller for Seller’s Condemnation Costs; provided, however, if Seller has not previously notified Purchaser of Seller’s Condemnation Costs, then Purchaser shall have ten (10) calendar days from the date on which Purchaser receives notification from Seller of Seller’s Condemnation Costs to reimburse Seller for Seller’s Condemnation Costs. Purchaser shall have no obligation to reimburse Seller for either any amount greater than Seller would have been entitled to pursuant to the terms of the Lease with CEVA or any amount greater than the award received by Purchaser. The two immediately preceding sentences shall survive the Closing.

(b) the last sentence of Section 6.3 of the Agreement is hereby amended and restated in its entirety as follows:

“Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to any Property and, as a result of such Condemnation, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Section 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate with respect to such Property and the Purchase Price shall be reduced by the Allocated Purchase Price of such Property.”

 

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11. SNDAs . The first sentence of Section 6.4.3 of the Agreement is hereby amended and restated in its entirety as follows:

“If requested by the Fixed Rate Lender and/or the Floating Rate Lender, or if required pursuant to the terms of the applicable Lease, Seller shall promptly after such request send to such tenants of the Improvements designated by such lenders a request for a subordination, non-disturbance and attornment agreement in a form approved by such lenders or required by such Lease (such subordination, non-disturbance and attornment agreements are referred to herein individually as, an “SNDA” and collectively as, the “SNDAs”).”

12. DirecTV/Traffic Signal . Pursuant to that certain (i) Traffic Signal Escrow Agreement dated April 14, 2000 and recorded on June 8, 2000 at Reception No. B0068913, and (ii) Escrow Contract and Security Agreement dated May 23, 2000 and recorded June 8, 2000 at Reception No. B0068915, each in Arapahoe County, Colorado, a predecessor-in-interest to Seller deposited a sum estimated to be $150,000 (the “DirecTV Deposit”) with U.S. Bank National Association to cover such predecessor owner’s estimated share of the cost of installation of a traffic signal at the intersection of Inverness Drive West and Inverness Terrace West near the Englewood, Colorado, Property occupied by DirecTV. To Seller’s knowledge, the DirecTV Deposit is currently held by U.S. Bank National Association. At Closing, Seller shall quitclaim to Purchaser, without representation or warranty by or recourse against Seller, all of Seller’s right, title and interest, if any, in and to the DirecTV Deposit.

13. Conditions to Seller’s Obligations to Close . Section 7.2.1(4) of the Agreement is hereby amended and restated in its entirety as follows:

“(4) Property . It shall be a condition to Seller’s obligation to close hereunder that this Agreement and the Harborside Purchase and Sale Agreement (as applicable) shall not have been terminated with respect to more than two (2) Properties (including Harborside) (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Goodyear Lease and the CEVA Lease cover multiple Properties); provided, however, that a termination of this Agreement with respect to a Property by reason of the exercise of a right to purchase such Property by a ROFO Tenant shall be disregarded for purposes of the application of the provisions of this Section 7.2.1(4). For clarification, the parties agree that while both this Agreement and the Harborside Purchase and Sale Agreement must both proceed towards Closing at the same time, or both terminate at the end of the Inspection Period together, it is possible for a closing condition under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect Harborside but proceed to closing under this Agreement.”

 

6


14. Conditions to Purchaser’s Obligations to Close.

(a) Section 7.2.2(6) of the Agreement is hereby amended and restated in its entirety as follows:

“(6) Closing of Fixed Rate Loan, Floating Rate Loan and Mezzanine Loan . (A) The closing of the Mezzanine Loan simultaneously with (1) the Closing and (2) the closing of the Fixed Rate Loan and the Floating Rate Loan and (B) the closing of the Fixed Rate Loan and the Floating Rate Loan on the Closing Date (unless the Fixed Rate Loan or the Floating Rate Loan fails to close as a result of (x) Purchaser’s uncured default under the Fixed Rate Term Sheet or the Floating Rate Term Sheet, as the case may be, (y) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (z) Purchaser’s failure to accept documentation for the Fixed Rate Loan or the Floating Rate Loan that is commercially reasonable for such transactions), shall be conditions to Purchaser’s obligation to close hereunder;”

(b) Section 7.2.2(8) of the Agreement is hereby amended by adding the following after the word “Policies” in the second line:

“(in the forms of the Pro Forma Policies as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser). Notwithstanding the foregoing, Purchaser and Seller agree that in no event shall the Title Company’s failure to deliver the Title Policies in the forms of the Pro Forma Policies be a failure of a condition to Purchaser’s obligation to Close if such failure to issue the Title Policies in the forms of the Pro Forma Policies results from the Title Company not receiving such documents and instruments, which are (i) required by the Title Company to issue the Title Policies in the forms of the Pro Forma Policies and (ii) not required to be obtained and delivered by Seller to Purchaser, the Title Company or otherwise pursuant to the terms of this Agreement.”

(c) Section 7.2.2(9) of the Agreement is hereby amended and restated in its entirety as follows:

“(9) Property . It shall be a condition to Purchaser’s obligation to close hereunder that this Agreement or the Harborside Purchase and Sale Agreement (as applicable) shall not have been terminated with respect to more than two (2) Properties (including Harborside) (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Goodyear Lease and the CEVA Lease cover multiple Properties); provided, however, that a termination of this Agreement with respect to a Property by reason of the exercise of a right to purchase such

 

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Property by a ROFO Tenant shall be disregarded for purposes of the application of the provisions of this Section 7.2.1(9). For clarification, the parties agree that while both this Agreement and the Harborside Purchase and Sale Agreement must both proceed towards Closing at the same time, or both terminate at the end of the Inspection Period together, it is possible for a closing condition under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect Harborside but proceed to Closing under this Agreement; and”

15. Tax Appeals . The following Section 8.10 is hereby added to the end of Article 8 of the Agreement:

“8.10 Tax Appeals . Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “Pre-Closing Tax Appeals”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal pursuant to the terms of the applicable Lease. If Seller elects not to pursue any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue such Pre-Closing Tax Appeal, unless Purchaser is required to pursue such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects not to pursue and which Purchaser elects or is obligated to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closing.”

 

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16. Purchaser’s Representations .

(a) Purchaser hereby confirms to Seller that Purchaser has obtained the approval and authorization of its board of directors contemplated by Section 9.2.1 of the Agreement.

(b) Section 9.2.7 of the Agreement is hereby amended and restated in its entirety as follows:

“9.2.7 Availability of Funds . Subject to obtaining the financing contemplated by the Fixed Rate Term Sheet, the Floating Rate Term Sheet and the Mezzanine Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.”

17. Purchaser’s Remedies . Section 10.2 of the Agreement is hereby amended as follows: the clause “$1,700,000.00” appearing in the fifteenth line thereof is hereby amended by adding the following at the end thereof: “plus such all-in rate lock costs (including, without limitation, swap and credit spreads) as Purchaser may have incurred in connection with the loan contemplated by the Fixed Rate Loan Term Sheet”.

18. Entirety and Amendments . Section 12.6 of the Agreement is hereby amended and restated in its entirety as follows:

“12.6 Entirety and Amendments . The exclusivity obligations and covenants set forth in that certain letter of intent dated April 2, 2010 between iStar Financial Inc., on behalf of Seller, and Purchaser are hereby incorporated herein and made a part of this Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.”

19. Schedules . Schedules 4.3.2 and 9.1.5 of the Agreement are hereby amended and restated in their entirety as set forth on Schedules 4.3.2 and 9.1.5 attached hereto, respectively.

20. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

21. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

 

9


IN WITNESS WHEREOF, Purchaser and Seller have executed this Amendment as of the date set forth above.

 

PURCHASER :

TRT ACQUISITIONS LLC, a Delaware limited

liability company

  By:       DCTRT Real Estate Holdco LLC, Its Sole Member
    By:       Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
      By:       Dividend Capital Total Realty Trust Inc., Its General Partner
        By:  

/s/ GREG MORAN

        Name:  

Greg Moran

        Title:  

SVP

SELLER:

iSTAR CTL SOUTH HAVANA – ENGLEWOOD LLC, a

Delaware limited liability company

iSTAR CTL WATERVIEW – DALLAS LLC, a Delaware

limited liability company

iSTAR CTL SHADELANDS – WALNUT CREEK LLC, a

Delaware limited liability company

iSTAR CTL NORTH GLENVILLE – RICHARDSON LLC,

a Delaware limited liability company

iSTAR CTL SHEILA – COMMERCE LLC, a Delaware

limited liability company

iSTAR CTL COLUMBIA – RICHFIELD LLC, a Delaware

limited liability company

iSTAR CTL COTTONWOOD – MILPITAS LLC, a

Delaware limited liability company

iSTAR CTL NORTH FAIRWAY DRIVE – VERNON

HILLS LLC, a Delaware limited liability company


iSTAR CTL DOOLITTLE – REDONDO BEACH LLC, a

Delaware limited liability company

iSTAR CTL CROWN COLONY – QUINCY LLC, a

Delaware limited liability company

iSTAR CTL RUE FERRARI – SAN JOSE LLC, a Delaware

limited liability company

iSTAR CTL CORPORATE CENTER DRIVE – NEWBURY

PARK LLC, a Delaware limited liability company

iSTAR CTL COLUMBIA – CAMPBELLSVILLE LLC, a

Delaware limited liability company

iSTAR CTL SUNSET HILLS – RESTON LLC, a Delaware

limited liability company

iSTAR CTL EAGLE LLC, a Delaware limited liability

company

iSTAR CTL SYLVAN WAY – PARSIPPANY LLC, a

Delaware limited liability company

iSTAR CTL INVERNESS – ENGLEWOOD LLC, a

Delaware limited liability company

iSTAR CTL CORPORATE DRIVE – DIXON LLC, a

Delaware limited liability company

iSTAR CTL RIVEREDGE SUMMIT – ATLANTA LLC, a

Delaware limited liability company

iSTAR CTL CONNECTION – IRVING LLC, a Delaware

limited liability company

iSTAR CTL CHARLESTON – MOUNTAIN VIEW LLC, a

Delaware limited liability company

iSTAR CTL DUBLIN LLC, a Delaware limited liability

company

iSTAR GT, L.P., a Delaware limited partnership

iSTAR NG LP, a Delaware limited partnership


iSTAR CTL MAPLE – EL SEGUNDO LLC, a Delaware

limited liability company

iSTAR CTL SW 80 – PLANTATION LLC, a Delaware limited liability company
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

 

AGREED TO:
iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

AGREED TO WITH RESPECT TO iSTAR’S PUT RIGHTS WITH RESPECT TO THE FIXED RATE PROPERTIES MEZZANINE LOAN AND THE FLOATING RATE PROPERTIES MEZZANINE LOAN AS SET FORTH IN SCHEDULE 4.3.2:

 

DIVIDEND CAPITAL TOTAL REALTY TRUST
By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:  

SVP


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE

COMPANY

By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.1.3

THIRD AMENDMENT TO

PURCHASE AND SALE AGREEMENT

(32 Properties)

THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 24th day of June, 2010, by and between Seller and Purchaser.

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Purchase and Sale Agreement, dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010 and that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010 (as amended, the “Agreement”) relating to the sale and purchase of the thirty-one (32) properties described therein. All defined terms in the Agreement (as amended by this Amendment) are used herein with the same meanings those terms have in the Agreement (as amended by this Amendment).

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE, in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

A G R E E M E N T

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Closing Date . Section 1.1.11 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.11 “ Closing Date ”: June 29, 2010, or such earlier date as may be agreed to in writing by Purchaser and Seller.”

3. Harborside Purchase and Sale Agreement . Section 1.1.15 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.15 “ Harborside Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and Harborside Seller, dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010 as further amended by that certain Third Amendment to Member Interest Purchase and Sale Agreement, dated as of June 24, 2010.”


4. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

5. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Remainder of Page Intentionally Left Blank;

Signature Page Follows]


IN WITNESS WHEREOF, Purchaser and Seller have executed this Amendment as of the date set forth above.

PURCHASER :

 

TRT ACQUISITIONS LLC , a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, Its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:   Dividend Capital Total Realty Trust Inc., Its General Partner
      By:  

/s/ GREG M. MORAN

      Name:   Greg M. Moran
      Title:   Vice President
      Date:  

6/24/10

SELLER :

iSTAR CTL SOUTH HAVANA – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL WATERVIEW – DALLAS LLC , a Delaware

limited liability company

iSTAR CTL SHADELANDS – WALNUT CREEK LLC , a

Delaware limited liability company

iSTAR CTL NORTH GLENVILLE – RICHARDSON

LLC , a Delaware limited liability company

iSTAR CTL SHEILA – COMMERCE LLC , a Delaware

limited liability company

iSTAR CTL COLUMBIA – RICHFIELD LLC , a

Delaware limited liability company

iSTAR CTL COTTONWOOD – MILPITAS LLC , a

Delaware limited liability company

iSTAR CTL NORTH FAIRWAY DRIVE – VERNON

HILLS LLC , a Delaware limited liability company


iSTAR CTL DOOLITTLE – REDONDO BEACH LLC , a

Delaware limited liability company

iSTAR CTL CROWN COLONY – QUINCY LLC , a

Delaware limited liability company

iSTAR CTL RUE FERRARI – SAN JOSE LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE CENTER DRIVE – NEWBURY

PARK LLC , a Delaware limited liability company

iSTAR CTL COLUMBIA – CAMPBELLSVILLE LLC , a

Delaware limited liability company

iSTAR CTL SUNSET HILLS – RESTON LLC , a

Delaware limited liability company

iSTAR CTL EAGLE LLC , a Delaware limited liability

company

iSTAR CTL SYLVAN WAY – PARSIPPANY LLC , a

Delaware limited liability company

iSTAR CTL INVERNESS – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE DRIVE – DIXON LLC , a

Delaware limited liability company

iSTAR CTL CONNECTION – IRVING LLC , a Delaware

limited liability company

iSTAR CTL CHARLESTON – MOUNTAIN VIEW LLC ,

a Delaware limited liability company

iSTAR CTL DUBLIN LLC , a Delaware limited liability company

iSTAR GT, L.P. , a Delaware limited partnership

iSTAR NG LP , a Delaware limited partnership

iSTAR CTL MAPLE – EL SEGUNDO LLC , a Delaware

limited liability company


iSTAR CTL SW 80 – PLANTATION LLC , a Delaware

limited liability company

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date:  

6/24/10

AGREED TO FOR PURPOSES OF SECTION 4.3.2:

iSTAR FINANCIAL INC., a Maryland corporation

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE COMPANY
By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.1.4

FOURTH AMENDMENT TO

PURCHASE AND SALE AGREEMENT

(30 Properties)

THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 25th day of June, 2010, by and between Seller and Purchaser.

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Purchase and Sale Agreement, dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010 and that certain Third Amendment to Purchase and Sale Agreement, dated as of June 24, 2010 (as amended, the “Agreement”) relating to the sale and purchase of the thirty (30) properties described therein. All defined terms in the Agreement (as amended by this Amendment) are used herein with the same meanings those terms have in the Agreement (as amended by this Amendment).

B. Certain failures of conditions to Purchaser’s obligation to close the purchase and sale of the McLean, Virginia Property leased by Northrop Grumman Systems Corporation have occurred (the “Failed Closing Conditions”).

C. As a result of the Failed Closing Conditions and notwithstanding anything contained in the Agreement to the contrary, Seller and Purchaser desire to amend the Agreement to, among other things, terminate the Agreement with respect to the McLean, Virginia Property leased by Northrop Grumman Systems Corporation, on and subject to the terms and conditions of this Amendment.

D. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE, in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

A G R E E M E N T

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Harborside Purchase and Sale Agreement . Section 1.1.15 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.15 “ Harborside Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and Harborside Seller, dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Member Interest Purchase and Sale Agreement,


dated as of May 21, 2010, as further amended by that certain Third Amendment to Member Interest Purchase and Sale Agreement, dated as of June 24, 2010, as further amended by that certain Fourth Amendment to Member Interest Purchase and Sale Agreement, dated as of June 25, 2010.”

3. Properties . The Agreement is hereby terminated with respect to the Property leased by Unisys Corporation and the Property leased by Northrop Grumman Systems Corporation. The Agreement, including all Schedules thereto, is hereby amended by deleting all references to Unisys Corporation, Northrop Grumman Systems Corporation, the Property leased by Unisys Corporation and the Property leased by Northrop Grumman Systems Corporation that are currently set forth in the Agreement, including all Schedules thereto, but prior to giving effect to the terms of this Amendment. For the avoidance of doubt, this Section 4 shall not apply to the references to, and terms and provisions regarding, Northrop Grumman Systems Corporation and the Property leased by Northrop Grumman Systems Corporation that are added to the Agreement by this Amendment.

4. Purchase Price . The Purchase Price, as defined in Section 1.1.3 of the Agreement, is hereby amended to $929,100,000.00. Schedule 1.1.3 of the Agreement is hereby amended and restated in its entirety as set forth on Schedule 1.1.3 attached hereto.

5. Definitions . Section 1.1 of the Agreement is hereby amended by adding the following at the end thereof:

“1.1.17 “ NG Partnership Interests Purchase and Sale Agreement ”: That certain Partnership Interests Purchase and Sale Agreement between Purchaser and NG Partnership Interests Seller, dated as of June 25, 2010 relating to the purchase and sale of the NG Partnership Interests.

1.1.18 “ NG Partnership Interests ”: One hundred percent (100%) of the partnership interests in NG LP.

1.1.19 “ NG Partnership Interests Seller ”: collectively, iStar NG Inc., a Delaware corporation, and iStar NG GenPar Inc., a Delaware corporation.

1.1.20 “ CTL Reston Member Interest Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and iStar CTL Holdco LLC, a Delaware limited liability company (“ CTL Reston Seller ”), dated as of June 25, 2010 relating to the purchase and sale of the CTL Reston Membership Interests.

1.1.21 “ CTL Reston Membership Interests ”: One hundred percent (100%) of the membership interests in CTL Reston.

1.1.22 “ CTL Reston ”: iStar CTL Sunset Hills – Reston LLC, a Delaware limited liability company.


1.1.23 “ Other Sellers ”: collectively, NG Partnership Interests Seller, CTL Reston Seller and Harborside Seller.

1.1.24 “ Other Real Properties ”: collectively, the properties commonly known as 11493 Sunset Hills Road, Reston, Virgina, the NG Property and Harborside.

1.1.25 “ Acquired Interests ” collectively, the NG Partnership Interests, the CTL Reston Membership Interests and the Harborside Membership Interests.

1.1.26 “ Other Purchase and Sale Agreements ”: collectively, the Harborside Purchase and Sale Agreement, the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement.

1.1.27. “ Acquired Properties ”: collectively, the Acquired Interests and the Property.

1.1.28 “ Northrop ”: Northrop Grumman Systems Corporation, a Delaware corporation.

1.1.29 “ NG Property ”: That certain property commonly known as 7555 Colshire Drive, McLean, Virgina

1.1.30 “ NG Lease ”: Deed of Lease dated July 27, 1999, as amended, modified and supplemented from time to time, by and between NG LP, successor-in-interest to West Group Properties LLC, a Virginia limited liability company, as landlord, and Northrop Grumman Systems Corporation, a Delaware corporation, successor-in-interest to PRC Inc., a Delaware corporation, as tenant.

1.1.31 “ NG LP ”: iStar NG LP, a Delaware limited partnership.”

6. Due Diligence . The second sentence of Section 4.3.1 of the Agreement is hereby amended and restated as follows:

“If Purchaser delivers a Due Diligence Waiver Notice, this Agreement and the Other Purchase and Sale Agreements shall continue in full force and effect, subject to the provisions of this Agreement and the Other Purchase and Sale Agreements, including Section 4.3.1 hereof and thereof, and Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Other Purchase and Sale Agreements) and conducted all inspections and tests of the Acquired Properties and the Other Real Properties that it considers important.”


7. Financing . Purchaser and Seller acknowledge and agree that (i) there have been certain modifications to the Fixed Rate Loan Term Sheet, the Floating Rate Loan Term Sheet and Schedule 4.3.2 to the Agreement and that such modifications will be embodied in the documents evidencing and securing the Fixed Rate Loan, the Floating Rate Loan and the Mezzanine Loan, respectively, which documents and instruments are being executed simultaneously with the execution of this Amendment and (ii) the properties securing the Fixed Rate Loan and the Floating Rate Loan include (as applicable) the Properties and the Other Real Properties (exclusive of Harborside).

8. Management Agreements . The last sentence of Section 4.6 is hereby amended and restated in its entirety as follows:

“Notwithstanding the foregoing, Seller shall, at its expense, terminate all Service Contracts which are management agreements, other than with respect to Harborside and the following described management agreements, all of which Purchaser shall assume at closing: (1) Property Management Agreement for 5853 Rue Ferrari San Jose, CA and 5863 Rue Ferrari San Jose, CA between iStar CTL Rue Ferrari - San Jose LLC, a Delaware limited liability company, and River Rock Real Estate Group, a California corporation, dated November 1, 2008, (2) Property Management Agreement for 161 Inverness Drive West, Englewood, Colorado between iStar CTL Inverness - Englewood LLC, a Delaware limited liability company (successor to Trinet Realty Investor V, Inc., a Maryland corporation), and CB Richard Ellis, Inc., a Delaware corporation, dated as of August 1, 2005, as amended by Amendment to Property Management Agreement dated January 25, 2007, and (3) Property Management Agreement for 2625 Shadelands Drive, Walnut Creek, California between iStar CTL Shadelands - Walnut Creek LLC, a Delaware limited liability company (as successor to SFI I, LLC, a Delaware limited liability company), and Kennedy-Wilson Properties Ltd., an Illinois corporation, dated as of December 1, 2005.”

9. Conditions to Seller’s Obligation to Close .

(a) Section 7.2.1(4) of the Agreement is hereby amended and restated in its entirety as follows:

“(4) Property . It shall be a condition to Seller’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the


two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Properties leased by The Goodyear Tire & Rubber Company (collectively, the “ Goodyear Properties ”) or one or more separate sites constituting the Properties leased by CEVA Freight, LLC (collectively, the “ CEVA Properties ”) shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Harborside Seller to terminate the Harborside Purchase and Sale Agreement and CTL Reston Seller to terminate the CTL Reston Member Interest Purchase and Sale Agreement.”

(b) Section 7.2.1 of the Agreement is hereby amended by adding the following Section 7.2.1(5) at the end thereof:

“(5) Simultaneous Closing . It shall be a condition to Seller’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.”

10. Conditions to Purchaser’s Obligation to Close .

(a) Section 7.2.2(9) of the Agreement is hereby amended and restated in its entirety as follows:

“(9) Property . It shall be a condition to Purchaser’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale


Agreement shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of this Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of this Agreement with respect to only one Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Harborside Seller to terminate the Harborside Purchase and Sale Agreement and CTL Reston Seller to terminate the CTL Reston Member Interest Purchase and Sale Agreement; and”

(b) Section 7.2.2 of the Agreement is hereby amended by adding the following Section 7.2.2(11) at the end thereof:

“(11) Simultaneous Closing. It shall be a condition to Purchaser’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.”

11. Failure to Satisfy Conditions . Section 7.2.3(b) of the Agreement is hereby amended and restated as follows:

“(b) if the condition(s) to close have not been satisfied under Sections 7.2.1(4) and 7.2.2(9) of this Agreement, or where this Agreement provides for a termination of this Agreement in its entirety, to terminate this Agreement in its entirety, in each case by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein), or elect to close notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition.”


12. Survival of Representations and Warranties . Section 9.3 of the Agreement is hereby amended and restated as follows:

“9.3 Survival of Representations and Warranties . The representations and warranties set forth in this Article 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean, (A) with respect to all Properties, the actual knowledge of the following persons with respect to all Properties: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, and Carrie Crain, Vice President, and (B) with respect to each Property, the actual knowledge of the applicable persons whose names are set forth opposite each Property on Schedule 9.3 (the persons identified in the foregoing items (A) and (B) are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do not have but could have obtained through further investigation or inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4 of the Other Purchase and Sale Agreements, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Other


Purchase and Sale Agreements) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate), (i) equals or exceeds (A) $1,000,000 if such breach relates to a Property with an Allocated Purchase Price of less than $50,000,000, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $1,000,000 and for all such damage above $1,000,000 with respect to such Property, or (B) $2,000,000 if such breach relates to a Property with an Allocated Purchase Price equal to or greater than $50,000,000, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $2,000,000 and for all such damage above $2,000,000 with respect to such Property, or (ii) without duplication of any claims made pursuant to subclause (i) of this clause (3), equals or exceeds $5,000,000 with respect to the Acquired Properties and the Other Real Property, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to the Acquired Properties and the Other Real Property, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement or of any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 of the Other Purchase and Sale Agreements and other than the Seller Estoppels and Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of the Other Sellers to Purchaser pursuant to Sections 9.3 of the Other Purchase and Sale Agreements will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Acquired Properties and (b) there shall be no threshold or limitation or limitation on survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by Article 10.”


13. Seller’s Remedies . Section 10.1 of the Agreement is hereby amended and restated in its entirety as follows:

“10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder, or under the Other Purchase and Sale Agreements, at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Other Purchase and Sale Agreements, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Other Purchase and Sale Agreements, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Other Sellers (as applicable) or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Property hereunder or the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as a penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.”


14. Purchaser Remedies . Section 10.2 of the Agreement is hereby amended and restated as follows:

“10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Other Sellers default in their obligations under the Other Purchase and Sale Agreement, at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Other Purchase and Sale Agreements, Other Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Other Purchase and Sale Agreements and the first sentence of Section 9.3 hereof and of the Other Purchase and Sale Agreements) and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder or the Other Sellers fail to consummate the sale of the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement in its entirety by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, in which event Seller shall be liable to Purchaser for its out of pocket expenses incurred in connection with the transaction contemplated hereby, but not to exceed $1,700,000.00 plus such all-in rate lock costs (including, without limitation, swap and credit spreads) as Purchaser may have incurred in connection with the loan contemplated by the Fixed Rate Loan Term Sheet, (b) terminate this Agreement in part with respect to the Properties with respect to which Seller’s representations or warranties or covenants are breached (subject to Sections 7.2.1(4) and 7.2.2(9)), in which event the Purchase Price shall be reduced by the Allocated Purchase Price for such Properties, (c) enforce specific performance to consummate the sale of the Property hereunder, or (d) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE SELLER ESTOPPELS AND/OR THE MEZZANINE LOAN, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.”


15. Resolution . The Agreement is hereby amended by adding the following Article 13 at the end thereof:

“ARTICLE 13

RESOLUTION FEE, RESOLUTION PAYMENT

AND RESOLUTION ESCROW

13.1 Resolution Fee . If the Resolution is not obtained prior to Closing, at Closing iStar shall pay, on behalf of Seller and the Other Sellers, or cause Seller and the Other Sellers to pay, Purchaser’s designee an amount equal to $4,300,000.00 from the proceeds of the sale of the Acquired Properties pursuant to this Agreement and the Other Purchase and Sale Agreements.

13.2 Resolution Payment . If the Resolution is not obtained prior to Closing, but is obtained within fifty (50) days following the Closing Date (the “ Resolution Expiration Date ”), Purchaser shall pay to iStar, on behalf of Seller and the Other Sellers, an amount equal to Two Million and 00/100 Dollars ($2,000,000.00) (the “ Resolution Payment ”) by wire transfer of immediately available funds to an account designated by iStar within five (5) Business Days of the date on which the Resolution is obtained (the “ Resolution Date ”). Subject to Section 13.5 below, if the Resolution is not obtained on or before the Resolution Expiration Date, Purchaser shall have no obligation to pay iStar the Resolution Payment.

13.3 Resolution Escrow . If the Resolution is not obtained prior to Closing, at Closing Escrow Agent (1) shall withhold Five Million and 00/100 Dollars ($5,000,000.00) (the “ Resolution Escrow Amount ”) from the aggregate purchase price for the Acquired Properties payable under this Agreement and the Other Purchase and Sale Agreements, and (2) shall (x) immediately deposit the Resolution Escrow Amount in government insured interest-bearing accounts satisfactory to iStar, on behalf of Seller and the Other Sellers, and Purchaser (the “ Resolution Escrow Account ”), (y) not commingle the Resolution Escrow Amount with any funds of Escrow Agent or others, and (z) promptly provide Purchaser and iStar, on behalf of Seller and the Other Sellers, with confirmation of the investments made. If the Resolution is obtained on or before the Resolution Expiration Date, Escrow Agent shall disburse the Resolution Escrow Amount to iStar, on behalf of Seller and the Other Sellers, within two (2) Business Days of the date on which Escrow Agent receives a joint order executed by iStar, on behalf of Seller and the Other Sellers, and Purchaser setting forth the Resolution Date and directing the disbursement of the Resolution Escrow Amount to iStar, on behalf of Seller and the Other Sellers. Subject to Section 13.5 below, if the Resolution is not obtained on or before the Resolution Expiration Date, Escrow Agent shall disburse the Resolution Escrow Amount to Purchaser within two (2)


Business Days of the date on which Escrow Agent receives a joint order executed by iStar, on behalf of Seller and the Other Sellers, and Purchaser stating that the Resolution was not obtained on or before the Resolution Expiration Date and directing the disbursement of the Resolution Escrow Amount to Purchaser.

13.4. Resolution . “ Resolution ” means the first to occur of the following:

(a) Northrop’s execution and delivery of either (a) an acknowledgment with respect to the Right of First Offer to Negotiate set forth in Rider 2 to the NG Lease (the “ NG ROFO Provision ”) stating any of the following with respect to (i) the transactions contemplated by this Agreement as in effect on May 3, 2010 and the Partnership Interests Purchase and Sale Agreement and (ii) a one-time transfer of the NG Property from NG LP to an affiliate of NG LP to accommodate lender requirements in connection with financing the NG Property: the NG ROFO Provision has not been triggered, it is not operable, it has been waived by Northrop or NG LP has no further obligation thereunder (the “ ROFO Acknowledgement ”); or (b) a Tenant Estoppel Certificate (as defined in the NG Partnership Interests Purchase and Sale Agreement) containing a ROFO Acknowledgement; or

(b) Northrop’s or any affiliate of Northrop’s execution of any lease modification, letter agreement, purchase contract or other agreement that provides (1) (A) that the ROFO Provision does not apply for any reason to a one-time transfer of the NG Property from NG LP to an affiliate of NG LP to accommodate lender requirements in connection with financing the NG Property, and (B) among other things, (i) that the NG ROFO Provision does not apply for any reason to the transaction contemplated by the NG Partnership Interests Purchase and Sale Agreement or the transaction contemplated by this Agreement as in effect on May 3, 2010, or (ii) that Northrop waives the application of the NG ROFO Provision to the transaction contemplated by the NG Partnership Interests Purchase and Sale Agreement or the transaction contemplated by this Agreement as in effect on May 3, 2010, or (iii) that Northrop will not take any action against NG Partnership Interests Seller, NG LP and/or Purchaser based on the application of the NG ROFO Provision to the transaction contemplated by the NG Partnership Interests Purchase and Sale Agreement or the transaction contemplated by this Agreement as in effect on May 3, 2010, or (2) for a full release of iStar, Seller, NG Partnership Interests Seller, NG LP, Purchaser, TRT NOIP Colshire – McLean LLC and TRT NOIP Colshire – McLean GP LLC and such other terms and conditions which have been approved by iStar, on behalf of Seller and the Other Sellers, and Purchaser.

13.5 Fixed Rate Transfer . If (A) the Resolution is not obtained on or prior to the Resolution Expiration Date, but the Resolution is obtained within forty (40) days following the Resolution Expiration Date (the “ Extended Resolution Expiration Date ”), and (B) the NG Property is transferred by Fixed Rate Lender and Floating Rate Lender to the pool of Properties securing the Fixed


Rate Loan (the “ Fixed Rate Transfer ”) on or before the Extended Resolution Expiration Date, then Purchaser shall pay to iStar, on behalf of Seller and the Other Sellers, the Resolution Payment and the Resolution Escrow Amount by wire transfer of immediately available funds to an account designated by iStar within five (5) Business Days of the later to occur of (x) the Resolution Date and (y) the date on which the Fixed Rate Transfer occurs. Purchaser agrees to use, and Purchaser agrees to cause its affiliates to use, good faith efforts to cause the Fixed Rate Transfer to occur on or before the Extended Resolution Date.

13.6 Indemnity Agreement . If the Resolution is not obtained prior to Closing, at Closing Purchaser and iStar shall each execute and deliver an indemnity agreement that sets forth, among other things, the rights and obligations of iStar on the one hand, and Purchaser, Dividend Capital Total Realty Trust Inc., Dividend Capital Total Realty Operating Partnership LP and NG LP, on the other hand, with respect to obtaining the Resolution.

13.7 Survival . This Article 13 shall survive the Closing.”

16. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

17. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Remainder of Page Intentionally Left Blank;

Signature Page Follows]


IN WITNESS WHEREOF, Purchaser and Seller have executed this Amendment as of the date set forth above.

PURCHASER :

 

TRT ACQUISITIONS LLC , a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, Its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:   Dividend Capital Total Realty Trust Inc., Its General Partner
      By:  

/s/ GREG MORAN

      Name:  

Greg Moran

      Title:  

SVP

SELLER :

iSTAR CTL SOUTH HAVANA – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL WATERVIEW – DALLAS LLC , a Delaware

limited liability company

iSTAR CTL SHADELANDS – WALNUT CREEK LLC , a

Delaware limited liability company

iSTAR CTL NORTH GLENVILLE – RICHARDSON

LLC , a Delaware limited liability company

iSTAR CTL SHEILA – COMMERCE LLC , a Delaware

limited liability company

iSTAR CTL COLUMBIA – RICHFIELD LLC , a

Delaware limited liability company

iSTAR CTL COTTONWOOD – MILPITAS LLC , a

Delaware limited liability company

iSTAR CTL NORTH FAIRWAY DRIVE – VERNON

HILLS LLC , a Delaware limited liability company

iSTAR CTL DOOLITTLE – REDONDO BEACH LLC , a

Delaware limited liability company


iSTAR CTL CROWN COLONY – QUINCY LLC , a

Delaware limited liability company

iSTAR CTL RUE FERRARI – SAN JOSE LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE CENTER DRIVE –

NEWBURY PARK LLC , a Delaware limited liability

company

iSTAR CTL COLUMBIA – CAMPBELLSVILLE LLC , a

Delaware limited liability company

iSTAR CTL SUNSET HILLS – RESTON LLC , a

Delaware limited liability company

iSTAR CTL EAGLE LLC , a Delaware limited liability

company

iSTAR CTL SYLVAN WAY – PARSIPPANY LLC , a

Delaware limited liability company

iSTAR CTL INVERNESS – ENGLEWOOD LLC , a

Delaware limited liability company

iSTAR CTL CORPORATE DRIVE – DIXON LLC , a

Delaware limited liability company

iSTAR CTL CONNECTION – IRVING LLC , a Delaware

limited liability company

iSTAR CTL CHARLESTON – MOUNTAIN VIEW LLC ,

a Delaware limited liability company

iSTAR CTL DUBLIN LLC , a Delaware limited liability

company

iSTAR GT, L.P. , a Delaware limited partnership

iSTAR NG LP , a Delaware limited partnership

iSTAR CTL MAPLE – EL SEGUNDO LLC , a Delaware

limited liability company


iSTAR CTL SW 80 – PLANTATION LLC , a Delaware

limited liability company

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

AGREED TO FOR PURPOSES OF SECTION 4.3.2 AND ARTICLE 13:

iSTAR FINANCIAL INC., a Maryland corporation

 

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money and the Resolution Escrow required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE COMPANY
By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.2

MEMBER INTEREST PURCHASE AND SALE AGREEMENT

BETWEEN

iSTAR HARBORSIDE LLC,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

DATED: MAY 3, 2010


TABLE OF CONTENTS

 

          Page No.
ARTICLE 1 BASIC INFORMATION    1

1.1

   Certain Basic Terms    1

1.2

   Closing Costs    5

1.3

   Notice Addresses    6
ARTICLE 2 MEMBERSHIP INTERESTS    7

2.1

   Membership Interests    7
ARTICLE 3 EARNEST MONEY    7

3.1

   Deposit and Investment of Earnest Money    7

3.2

   Independent Consideration    7

3.3

   Form; Failure to Deposit    8

3.4

   Disposition of Earnest Money    8
ARTICLE 4 DUE DILIGENCE    8

4.1

   Due Diligence Materials To Be Delivered    8

4.2

   Physical Due Diligence    10

4.3

   Due Diligence/Financing Contingency Termination Rights    11

4.4

   Updated Property Information    14

4.5

   Return of Documents and Reports    14

4.6

   Service Contracts    15

4.7

   Proprietary Information; Confidentiality    15

4.8

   No Representation or Warranty by Seller    15

4.9

   Purchaser’s Responsibilities    16

4.10

   Purchaser’s Agreement to Indemnify    16
ARTICLE 5 TITLE AND SURVEY    17

5.1

   Title Commitments    17

5.2

   Updated Surveys    17

5.3

   Title Review    17

5.4

   Delivery of Title Policy and Non-Imputation Endorsement at Closing    18
ARTICLE 6 OPERATIONS AND RISK OF LOSS    18

6.1

   Ongoing Operations    18

6.2

   Casualty    21

6.3

   Condemnation    22

6.4

   Tenant Estoppel Certificate/SNDA/Management Agreement Estoppel Certificate    22
ARTICLE 7 CLOSING    24

7.1

   Closing    24

7.2

   Conditions to Parties’ Obligation to Close    24

7.3

   Seller’s Deliveries in Escrow    26

7.4

   Purchaser’s Deliveries in Escrow    28

7.5

   Closing Statements    28

7.6

   Purchase Price    28

 

i


7.7

   Possession    29

7.8

   Delivery of Books and Records    29

7.9

   Notice to Schwab, Tenant’s and Licensees    29
ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS    29

8.1

   Prorations for Taxes    29

8.2

   Prorations for Tenant-Paid Operating Expenses    30

8.3

   Prorations for Non-Tenant Paid Items    30

8.4

   Miscellaneous Prorations    32

8.5

   Leasing Costs    32

8.6

   Closing Costs    33

8.7

   Final Adjustment After Closing    33

8.8

   Tenant Deposits    33

8.9

   Commissions    33

8.10

   Accounts    34
ARTICLE 9 REPRESENTATIONS AND WARRANTIES    34

9.1

   Seller’s Representations and Warranties    34

9.2

   Purchaser’s Representations and Warranties    40

9.3

   Survival of Representations and Warranties    41

9.4

   Company Representations.    42
ARTICLE 10 DEFAULT AND REMEDIES    43

10.1

   Seller’s Remedies    43

10.2

   Purchaser’s Remedies    43

10.3

   Attorneys’ Fees    44

10.4

   Other Expenses    44
ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY    44

11.1

   Disclaimers By Seller    44

11.2

   Sale “As Is, Where Is”    45

11.3

   Seller Released from Liability    46

11.4

   “Hazardous Materials” Defined    47

11.5

   Intentionally Deleted    47

11.6

   Survival    47
ARTICLE 12 MISCELLANEOUS    47

12.1

   Parties Bound; Assignment    47

12.2

   Headings    47

12.3

   Invalidity and Waiver    47

12.4

   Governing Law    48

12.5

   Survival    48

12.6

   Entirety and Amendments    48

12.7

   Time    48

12.8

   Intentionally Omitted.    48

12.9

   No Electronic Transactions    48

12.10

   Notices    49

12.11

   Construction    49

12.12

   Calculation of Time Periods; Business Day    49

 

ii


12.13

   Execution in Counterparts    49

12.14

   Recordation    49

12.15

   Further Assurances    50

12.16

   Discharge of Obligations    50

12.17

   ERISA    50

12.18

   No Third Party Beneficiary    50

12.19

   Reporting Person    50

12.20

   Post-Closing Access    50

12.21

   Waiver of Jury Trial    51

12.22

   Information and Audit Cooperation    51

12.23

   Bulk Sales Laws    51

 

iii


LIST OF DEFINED TERMS

 

     Page No.
AFE    2
AFE LLC Agreement    4
Agreement    1
Assignment and Assumption    26
Books and Records    5
Bridge Financing Commitment    12
Bridge Loan    14
Business Day    49
Casualty    21
Casualty Tenant Termination Event    21
Casualty Tenant Termination Notice    21
CERCLA    46
Closing    24
Closing Date    2
Closing Date Extension Condition    13
Code    40
Code Plan    40
Co-Insurance    18
Company Representations    42
Condemnation    22
Condemnation Tenant Termination Event    22
Condemnation Tenant Termination Notice    22
Confidentiality Agreement    2
Demanding Party    8
Due Diligence Termination Notice    11
Earnest Money    1
Effective Date    2
ERISA    40
ERISA Plan    40
Escrow Agent    2
Extended Coverage    5
Fidelity    18
Financial Advisor    2
Financial Agreement    4
Financial Statements    10
Financing Commitment Extension Period    13
Financing Commitment Status Statement    13
First American    18
GE Bridge Financing Commitment    12
GE Bridge Loan    14
GE Loan    14
GECC    12
Guaranties    3
Guaranty    3

 

iv


Hazardous Materials    46
Improvements    3
Indemnitor    42
Independent Consideration    7
Inspection Period    2
Intangible Personal Property    4
iPortal    8
iStar    2
Land    3
Lease    3
Lease Files    9
Leases    3
Leases and Guaranties    3
Leasing Costs    32
License Agreements    4
Mack-Cali    5
Mack-Cali Management Agreement    5
Management Agreement Estoppel Certificate    23
Mezzanine Loan    14
Non-Demanding Party    8
Non-Imputation Endorsement    18
OFAC    36
Operating Expenses    30
Operating Statements    9
Permitted Exceptions    17
Permitted Liabilities    38
Plan Assets    40
Portfolio Property    3
Portfolio Purchase and Sale Agreement    3
Portfolio Seller    3
Property    7
Property Information    8
Purchase Price    1
Purchaser    1
PXLA    3
PXR    2
PXURA    2
Real Property    3
Rent Roll    9
Reports    14
Schwab    4
Second Street Option    37
Seller    1
Seller’s Ownership Period    5
Seller’s Representatives    41
Senior Lender    12

 

v


Service Contracts    4
Similar Law    50
SNDA    23
Subsidiary    3
Subsidiary LLC Agreements    5
Surveys    9
Survival Period    41
Tangible Personal Property    3
Tax Proceeding    30
Taxes    29
Tenant Estoppel Certificate    22
Tenant Receivables    30
Term Financing Commitment    12
The Subsidiaries    3
Third Party Estoppel Certificate    23
Third Party Estoppel Certificates    23
Title Affidavits    27
Title and Survey Review Period    2
Title Commitment    17
Title Company    1
Title Policy    18
Unbilled Tenant Receivables    31
Uncollected Delinquent Tenant Receivables    31
Updated Property Information    14

 

vi


MEMBER INTEREST PURCHASE AND SALE AGREEMENT

This Member Interest Purchase and Sale Agreement (this “ Agreement ”) is made and entered into by and between Purchaser and Seller.

RECITALS

A. Defined terms are indicated by initial capital letters. Defined terms shall have the meanings set forth herein, whether or not such terms are used before or after the definitions are set forth.

B. Purchaser desires to purchase the Membership Interests and Seller desires to sell the Membership Interests, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants and agreements set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as follows:

ARTICLE 1

BASIC INFORMATION

1.1 Certain Basic Terms . The following defined terms shall have the meanings set forth below:

1.1.1 “ Seller ”: iStar Harborside LLC, a Delaware limited liability company.

1.1.2 “ Purchaser ”: TRT Acquisitions LLC, a Delaware limited liability company.

1.1.3 “ Purchase Price ”: $212,000,000.00, subject to adjustment as provided herein.

1.1.4 “ Earnest Money ”: $3,800,000.00, including all interest earned thereon, to be deposited in accordance with Section 3.1 below. All references herein to Earnest Money shall be deemed to include only such portions thereof as have been deposited with Escrow Agent in accordance with Section 3.1.

1.1.5 “ Title Company ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Chicago, Illinois 60602

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com


And

Fidelity Title Insurance Company

8450 E. Crescent Parkway, Suite 410

Greenwood Village, CO 80111

Attn: Ms. Valena Bloomquist

Telephone number: (303) 244-9198

Facsimile number: (720) 489-7593

E-mail: valena.bloomquist@fnf.com

1.1.6 “ Escrow Agent ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

1.1.7 “ Financial Advisor ”: HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, LP.

1.1.8 “ Effective Date ”: The date on which this Agreement is executed by the latter to sign of Purchaser or Seller, as indicated on the signature page of this Agreement. If the execution date is left blank by either Purchaser or Seller, the Effective Date shall be the execution date inserted by the other party.

1.1.9 “ Title and Survey Review Period ”: The period ending on May 11, 2010.

1.1.10 “ Inspection Period ”: The period beginning on the Effective Date and ending on May 11, 2010, subject to extension as provided in Section 6.1.4(1).

1.1.11 “ Closing Date ”: The date which is ten (10) days after the expiration of the Inspection Period, subject to extension as provided in Section 4.3.2.

1.1.12 “ Confidentiality Agreement ”: The letter agreement dated March 31, 2010 between iStar Financial Inc., an affiliate of Seller (“ iStar ”), and Purchaser.

1.1.13 “ AFE ”: American Financial Exchange L.L.C., a New Jersey limited liability company.

1.1.14 “ PXR ”: Plaza X Realty L.L.C., a New Jersey limited liability company.

1.1.15 “ PXURA ”: Plaza X Urban Renewal Associates L.L.C., a New Jersey limited liability company.

 

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1.1.16 “ PXLA ”: Plaza X Leasing Associates L.L.C., a New Jersey limited liability company.

1.1.17 “ The Subsidiaries ”: collectively, PXR, PXURA and PXLA. Each of PXR, PXURA and PXLA are sometimes referred to herein as a “ Subsidiary ”.

1.1.18 “ Portfolio Purchase and Sale Agreement ”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the contest requires, “ Portfolio Seller ”) dated as of the date hereof.

1.1.19 “ Portfolio Property ”: Those certain properties described in the Portfolio Purchase and Sale Agreement.

1.1.20 “ Real Property ”: The land described in Exhibit A hereto (the “ Land ”), together with (a) all improvements located thereon, including, without limitation, that certain office building, but expressly excluding improvements and structures owned by any tenant or other third party pursuant to Leases (the “ Improvements ”), (b) all right, title and interest of AFE, if any, in and to the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining thereto, including without limitation, any and all minerals and mineral rights, oil, gas, and oil and gas rights, development rights, air rights, water and water rights, wells, well rights and well permits, water and sewer taps, and sanitary or storm sewer capacity, and (c) all right, title, and interest of AFE and, as applicable, PXURA, as ground lessor of the Real Property, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, if any, adjoining the Land (the Land, together with items (a), (b) and (c) of this Section 1.1.20, collectively, the “ Real Property ”).

1.1.21 “ Leases and Guaranties ”: All of AFE’s and the Subsidiaries’ (in each case, as applicable) right, title and interest, without warranty except as set forth herein, in those existing leases and subleases, including any amendments to such leases and subleases made by AFE and the Subsidiaries (in each case, as applicable), described on Schedule 1.1.21 and all leases or subleases which may be made by AFE and the Subsidiaries’ (in each case, as applicable) after the Effective Date and prior to Closing as permitted by this Agreement (individually a “ Lease ” and collectively the “ Leases ”), all guaranties of such Leases, including any amendments to such guaranties, described on Schedule 1.1.21 (individually a “ Guaranty ” and collectively the “ Guaranties ”), and all other collateral securing the Leases or Guaranties, including without limitation all security deposits and letters of credit.

1.1.22 “ Tangible Personal Property ”: All of AFE’s and the Subsidiaries’ (in each case, to the extent applicable) right, title and interest, without warranty, except as set forth herein, in the equipment, machinery, furniture, furnishings, supplies and other tangible personal property, if any, owned by AFE or the Subsidiaries’ (in each case, to the extent applicable) and now or hereafter located in and used in connection with the operation, ownership or management of the Real Property, but specifically excluding any items of personal property owned or leased by any tenants at or on the Real Property (other than the Subsidiaries) and further excluding any items of personal property owned by third parties and leased to AFE or the Subsidiaries (in each case, to the extent applicable) (collectively, the “ Tangible Personal Property ”), which excluded items of personal property are listed on Schedule 1.1.22 .

 

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1.1.23 “ Intangible Personal Property ”: All of AFE’s and the Subsidiaries’ (in each case, to the extent applicable) right, title and interest, if any, without warranty, except as set forth herein, in all intangible personal property related to the Real Property and the Improvements, including, without limitation: all trade names and trade marks associated with the Real Property and the Improvements, including AFE’s and the Subsidiaries’ (in each case, to the extent applicable) rights and interests, if any, in the name of the Real Property; the plans and specifications and other architectural and engineering drawings for the Improvements, if any; contract rights related to the operation, ownership or management of the Real Property, including maintenance, service, construction, supply and equipment rental contracts, if any, but not including Leases or License Agreements (collectively, the “ Service Contracts ”) warranties; governmental permits, approvals and licenses, if any; and telephone exchange numbers (all of the items described in this Section 1.1.22 collectively referred to as the “ Intangible Personal Property ”). Tangible Personal Property and Intangible Personal Property shall not include (a) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller, AFE, the Subsidiaries or any affiliate of Seller, AFE or the Subsidiaries, (b) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property, Seller, AFE and/or the Subsidiaries or which are subject to a confidentiality agreement, (c) such documents, materials or information received by Seller, AFE or the Subsidiaries from tenants and covered by confidentiality agreements between such tenants and Seller, AFE or the Subsidiaries, except that such documents, materials or information shall be included in Tangible Personal Property if Purchaser shall have agreed in writing to be bound by the terms of such confidentiality agreements prior to Seller’s delivery of such documents, materials and information to Purchaser, and (d) any trade name, mark or other identifying material that includes the name “iStar” or any derivative thereof.

1.1.24 “ License Agreements ”: All of AFE’s and the Subsidiaries’ (in each case, to the extent applicable) right, title and interest, without warranty, except as set forth herein, in and to all agreements (other than the Leases and the Guaranties), if any, for the leasing or licensing of rooftop space or equipment, telecommunications equipment, cable access and other space, equipment and facilities that are located on or within the Real Property and generate income to AFE or the Subsidiaries as the owner and tenants of the Real Property, including agreements which may be made by AFE or the Subsidiaries after the Effective Date and prior to Closing as permitted by this Agreement (the “ License Agreements ”).

1.1.25 “ Schwab ”: Charles Schwab & Co., Inc., a California corporation.

1.1.26 “ Financial Agreement ”: that certain Financial Agreement, together with all exhibit and schedules annexed thereto, dated as of November 15, 2000 between PXURA and the City of Jersey City, as amended by that certain Addendum to Financial Agreement, dated as of November 15, 2000 as further amended by that certain Amendment to Financial Agreement, effective as of September 23, 2003.

1.1.27 “ AFE LLC Agreement ”: that certain Second Amended and Restated Limited Liability Company Agreement of American Financial Exchange L.L.C., dated June 26, 2008 and any amendments thereto, if any.

 

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1.1.28 “ Books and Records ”: collectively, all books and records maintained by AFE and the Subsidiaries and all books and records maintained by Seller or Mack-Cali as the property manager on behalf of AFE and the Subsidiaries (in each case, to the extent applicable) in connection with the ownership or operation of the Real Property or Improvements or with respect to the corporate matters of AFE and the Subsidiaries.

1.1.29 “ Subsidiary LLC Agreements ”: collectively, (i) that certain Second Amended and Restated Limited Liability Company Agreement of PXR, dated June 26, 2008, and any amendments thereto, if any, (ii) that certain Second Amended and Restated Limited Liability Company Agreement of PXURA, dated June 26, 2008, and any amendments thereto, if any, and (iii) that certain Second Amended and Restated Limited Liability Company Agreement of Plaza X Leasing Associates L.L.C., dated June 26, 2008, and any amendments thereto, if any.

1.1.30 “ Extended Coverage ”: means the deletion of exceptions 2, 3, 4 and 5 from Schedule B – Section 2 of the Title Commitment.

1.1.31 “ Mack-Cali ”: Mack-Cali Realty, L.P., a Delaware limited partnership, in its capacity as property manager under the Mack-Cali Management Agreement.

1.1.32 “ Mack-Cali Management Agreement ”: Property Management Agreement dated September 29, 2003 by and between PXLA and Mack-Cali.

1.1.33 “ Seller’s Ownership Period ”: The period beginning on the date Seller acquired the Membership Interests and continuing through the Closing Date.

1.1.34 “ Contracting Agreement ”: that certain Project Employment and Contracting Agreement between the City of Jersey City and PXURA dated November 15, 2000.

1.2 Closing Costs . Closing costs shall be allocated and paid as follows:

 

Cost

  

Responsible Party

Title Commitment required to be delivered pursuant to Section 5.1    Seller
Premium for standard form Title Policy with Extended Coverage, Co-Insurance and one-half (1/2) of the Non-Imputation Endorsement (subject to this Section 1.2 and Section 5.4) required to be delivered pursuant to Section 5.4    Seller
Premium for any upgrade of the Title Policy for additional coverage, including, without limitation, the premium for any re-insurance, and any endorsements to the Title Policy desired by Purchaser (except that Purchaser shall pay only one-half (1/2) of the premium for the Non-Imputation Endorsement), any inspection fee charged by the Title Company, tax certificates, municipal and utility lien certificates, and any other Title Company charges other than those required in connection with satisfying any liens which are not Permitted Exceptions    Purchaser

 

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Any increase in the premium for the Title Policy attributable to obtaining Co-Insurance as provided in Section 5.4    Purchaser
Any costs required to cause the Title Company to issue the Title Policy with Extended Coverage    Seller
Costs of a new survey and/or any revisions, modifications or recertifications to the existing Survey.    Seller
Costs for UCC Searches    Purchaser
Recording Fees    Paid in accordance with local custom
Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or assessments    Paid in accordance with  Schedule 1.2
Any escrow fee charged by Escrow Agent for holding the Earnest Money or conducting the Closing    Purchaser  1 / 2 Seller  1 / 2
Real Estate Fee to Financial Advisor    Seller
All other closing costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring the same.   

1.3 Notice Addresses . All notices required or permitted to be sent hereunder shall be sent as follows:

 

Purchaser:    TRT Acquisitions LLC    Copies to:    TRT Acquisitions LLC
   518 17 th Street, Suite 1700       518 17 th Street, Suite 1700
   Denver, CO 80202       Denver, CO 80202
Attention:   

Mr. John Blumberg

Mr. Greg Moran

      Attention: Joshua J. Widoff, Esq.
Telephone:    303-228-2200       Telephone: 303-228-2200
Facsimile:    303-577-9797       Facsimile: 303-869-4602
E-mail:    gmoran@dividendcapital.com       E-mail: jwidoff@dividendcapital.com
        

and

 

Greenberg Traurig, LLP

200 Park Avenue

New York, NY 10166

Attention: Robert J. Ivanhoe, Esq.

Telephone: 212-801-9333

Facsimile: 212-801-6400

E-mail: ivanhoer@gtlaw.com

Seller:    c/o iStar Financial Inc.    Copies to:    iStar Financial Inc.
   1114 Avenue of the Americas       1114 Avenue of the Americas
   New York, NY 10036       New York, NY 10036
   Attention: Samantha Garbus       Attn: Mary-Beth Roselle, Esq.
   Telephone: 212-930-9407       Telephone: 212-930-9481
   Facsimile: 212-930-9494       Facsimile: 212-930-9494
   E-mail: sgarbus@istarfinancial.com       E-mail: mroselle@istarfinancial.com

 

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iStar Asset Services Inc.

180 Glastonbury Boulevard

Glastonbury, CT 06033

Attn: President

Telephone: 860-815-5910

Facsimile: 860-815-5901

E-mail: brubin@istarfinancial.com

        

Katten Muchin Rosenman LLP

525 West Monroe St.

Chicago, IL 60661-3693

Attn: Gregory P.L. Pierce, Esq.

Phone: 312-902-5541

Fax: 312-577-8893

Email: greg.pierce@kattenlaw.com

ARTICLE 2

MEMBERSHIP INTERESTS

2.1 Membership Interests . Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, one hundred percent (100%) of the membership interests in AFE (the “ Membership Interests ”).

ARTICLE 3

EARNEST MONEY

3.1 Deposit and Investment of Earnest Money . Within two (2) Business Days after the Effective Date, Purchaser shall deposit One Million Nine Hundred Thousand and no/100 Dollars ($1,900,000.00) with Escrow Agent and deliver a completed, executed Form W-9 to the Escrow Agent and the Seller. Within two (2) Business Days after Purchaser has delivered the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, Purchaser shall deposit One Million Nine Hundred Thousand and no/100 Dollars ($1,900,000.00) with Escrow Agent. Escrow Agent shall invest the Earnest Money in the Federated Prime Obligations Fund (NASDAQ: POIXX), shall not commingle the Earnest Money with any funds of Escrow Agent or others, and shall promptly provide Purchaser and Seller with confirmation of the investments made. Such account shall have no penalty for early withdrawal, and Purchaser accepts all risks with regard to the investment of the Earnest Money.

3.2 Independent Consideration . If this Agreement terminates pursuant to Section 4.3.1, 4.3.2 or Article 10 hereof and Purchaser is entitled to receive a return of the Earnest Money pursuant to the terms hereof, the Escrow Agent shall first disburse to Seller One Hundred and No/100 Dollars ($100.00) as independent consideration for Seller’s performance under this Agreement (“ Independent Consideration ”), which shall be retained by Seller in all instances.

 

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3.3 Form; Failure to Deposit . The Earnest Money shall be paid by wire transfers to Escrow Agent of immediately available U.S. federal funds. If Purchaser fails to timely deposit all of the Earnest Money within the time periods required, Seller may terminate this Agreement by written notice to Purchaser and Escrow Agent, in which event any Earnest Money that has previously been deposited by Purchaser with Escrow Agent shall be immediately delivered to Seller and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

3.4 Disposition of Earnest Money . The Earnest Money shall be applied as a credit to the Purchase Price at Closing. However, if this Agreement terminates pursuant to Section 4.3.1 or 4.3.2, Escrow Agent shall pay the entire Earnest Money (less the Independent Consideration) to Purchaser one (1) Business Day following the end of the Inspection Period (as long as the current investment can be liquidated and disbursed in one (1) Business Day). No notice to Escrow Agent from Seller shall be required for the release of the Earnest Money to Purchaser by Escrow Agent if this Agreement terminates pursuant to Section 4.3.1 or 4.3.2. In the event of a termination of this Agreement by either Seller or Purchaser other than pursuant to Section 4.3.1, 4.3.2 or Article 10, Seller and Purchaser hereby direct Escrow Agent to immediately add the Earnest Money held by Escrow Agent pursuant to the terms of this Agreement to the earnest money held by Escrow Agent pursuant to the Portfolio Purchase and Sale Agreement and thereafter the Earnest Money shall be held by Escrow Agent pursuant to the terms of the Portfolio Purchase and Sale Agreement. In the event of a termination of this Agreement by either Seller or Purchaser pursuant to Article 10, the party (the “ Demanding Party ”) seeking to terminate this Agreement pursuant to Article 10 shall give written notice of such election to Escrow Agent and the other party (the “ Non-Demanding Party ”) to this Agreement. Upon receipt of such notice of termination pursuant to Article 10, Escrow Agent shall give notice to the Non-Demanding Party of Escrow Agent’s receipt of such notice, enclosing a copy of the notice in question. If within five (5) Business Days after the Non-Demanding Party is given or deemed to have been given notice of Escrow Agent’s receipt of the notice in question, Escrow Agent has not received from the Non-Demanding Party its notice of objection to the notice, then Escrow Agent shall disburse the Earnest Money as requested by the notice in question, on the sixth (6th) Business Day following its giving of such notice to the Non-Demanding Party. If within said five (5) Business Day period Escrow Agent receives from the Non-Demanding Party notice of objection, then Escrow Agent shall notify the Demanding Party of the objection, and continue to hold the Earnest Money until Escrow Agent is in receipt of a joint order direction or a court order instructing Escrow Agent to disburse the Earnest Money. In such event of objection, Escrow Agent may interplead the Earnest Money into a court of competent jurisdiction in a New York state court or federal court located in the State, City and County of New York. All attorneys’ fees and costs and Escrow Agent’s costs and expenses incurred in connection with such interpleader shall be assessed against the party that is not awarded the Earnest Money, or if the Earnest Money is distributed in part to both parties, then in the inverse proportion of such distribution.

ARTICLE 4

DUE DILIGENCE

4.1 Due Diligence Materials To Be Delivered . Seller has delivered to Purchaser complete (to Seller’s knowledge) copies of, or made electronic copies available to Purchaser on Seller’s iPortal internet site relating to the Real Property and Membership Interests (“ iPortal ”), the following (the “ Property Information, ” or the “Property Documents ”):

4.1.1 Rent Roll . A current rent roll in Seller’s standard form (“ Rent Roll ”) for the Real Property and Improvements;

 

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4.1.2 Financial Information . Operating statements and summaries of capital expenditures pertaining to the Real Property and Improvements during the Seller’s Ownership Period (collectively, “ Operating Statements ”);

4.1.3 Environmental Reports . A copy of any environmental reports or environmental site assessments related to the Real Property and Improvements prepared for the benefit of Seller, AFE or the Subsidiaries (as applicable), it being acknowledged by Purchaser that Purchaser shall not be entitled to rely thereon absent an express reliance letter from the company issuing such environmental reports or environmental site assessments obtained by Purchaser at Purchaser’s sole cost and expense;

4.1.4 Tax and Financial Agreement Statements . Ad valorem tax statements relating to the Real Property and Improvements, statements sent by or on behalf of AFE and the Subsidiaries pursuant to the Financial Agreement relating to the Real Property and Improvements during the Seller’s Ownership Period and material correspondence received by AFE or the Subsidiaries during the Seller’s Ownership Period and relating to the Financial Agreement;

4.1.5 Surveys . A copy of the most current survey, if any, of the Real Property and Improvements in Seller’s possession (the “ Survey ”);

4.1.6 Service Contracts . Copies of any Service Contracts for the Real Property and Improvements;

4.1.7 Personal Property . A list of Tangible Personal Property for the Real Property and Improvements;

4.1.8 License Agreements . Copies of any License Agreements for the Real Property and Improvements;

4.1.9 Lease Files . The lease file for the Leases affecting the Real Property and Improvements, including, without limitation, the Leases, any amendments thereto, the Guaranties (if applicable), any amendments thereto, any letter agreements, any assignments which are then in effect and any letters of credit which are then in effect (collectively, the “ Lease File ”);

4.1.10 Maintenance Records and Warranties . Maintenance work orders for the Improvements for the 12 months preceding the Effective Date and warranties for the Improvements, if any, on roofs, air conditioning units, fixtures and equipment;

4.1.11 Plans and Specifications . Building plans and specifications relating to the Improvements, if any;

 

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4.1.12 Licenses, Permits and Certificates of Occupancy . Licenses, permits and certificates of occupancy relating to the Improvements and umbrella policies related thereto;

4.1.13 Insurance Certificates . Copies of certificates evidencing the existing liability and casualty insurance coverage for the Real Property and Improvements maintained by AFE, the Subsidiaries (as applicable) and other affiliates of Seller;

4.1.14 Tax Returns . Copies of the federal, state and local tax returns of Seller, AFE and the Subsidiaries (in each case, to the extent applicable) for the past four (4) years (collectively, the “ Tax Returns ”);

4.1.15 Organizational Documents . The AFE LLC Agreement, the Subsidiary LLC Agreements, all related articles, charters, certificates of formation, and registrations and minutes, and any amendments and modifications thereto;

4.1.16 Books and Records . The Books and Records;

4.1.17 Financial Statements . Audited financial statements filed by PXURA pursuant to the Financial Agreement during the Seller’s Ownership Period and unaudited financial statements and reports of AFE and the Subsidiaries in such form as compiled by Seller, AFE or the Subsidiaries during the Seller’s Ownership Period (collectively, the “ Financial Statements ”).

Except for the Rent Roll contemplated in Section 4.1.1, Seller’s obligation to deliver the items listed in this Section 4.1 shall be limited to the extent such items are in the possession of Seller, AFE, PXR, PXURA, PXLA or Mack-Cali.

4.2 Physical Due Diligence . Commencing on the Effective Date and continuing until the Closing, subject to the terms of the Leases, Purchaser shall have reasonable access to the Real Property and Improvements at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller the greater of (i) two (2) full Business Days’ or (ii) the minimum notice period required by the applicable Leases for the Real Property or Improvements, written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent shall not be unreasonably withheld or conditioned), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser and its contractors, agents and representatives have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least One Million Dollar ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury or death and property damage insurance including coverage for contractual liability and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (2) workers’ compensation and employers’ liability insurance with limits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and

 

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representatives on the Real Property or in the Improvements, which insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder Seller, AFE, the Subsidiaries and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. The requirement to carry the insurance specified in the preceding sentence may be satisfied through blanket or umbrella insurance policies carried by Purchaser or its affiliates. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any Seller-designated tenant representative; provided, however, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any Seller-designated tenant representative and allow Seller the opportunity to participate in such communication if Seller desires. No assurance or guaranty is afforded by Seller that any Seller-designated tenant representative will communicate with Purchaser or Purchaser’s representatives. Subject to the provisions of Section 4.7 and 4.10 hereof, Purchaser or Purchaser’s representatives may, only with Seller’s consent or participation, communicate with any governmental authority for the sole purpose of gathering information regarding current zoning compliance of the Real Property and current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement. Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section 4.2, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means in person or otherwise, and includes requests for inspections or other access to the Real Property and Improvements.

4.3 Due Diligence/Financing Contingency Termination Rights .

4.3.1 Notwithstanding anything to the contrary in this Agreement, this Agreement shall automatically terminate on the last day of the Inspection Period unless Purchaser gives written notice waiving such termination and containing such other information required by Section 4.3.2 hereof and Section 4.3.2 of the Portfolio Purchase and Sale Agreement to Seller, Portfolio Seller and Escrow Agent (the “ Due Diligence Waiver Notice ”) on or before the last day of the Inspection Period. If Purchaser delivers a Due Diligence Waiver Notice, this Agreement, and the Portfolio Purchase and Sale Agreement pursuant to the terms thereof, shall continue in full force and effect, subject to the provisions of this Agreement and the Portfolio Purchase and Sale Agreement, including Section 4.3.1 hereof and thereof, and Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Portfolio Purchase and Sale Agreement) and conducted all inspections and tests of the Real Property, Improvements and Portfolio Property that it considers important.

 

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4.3.2 Notwithstanding anything to the contrary in this Agreement, this Agreement, and the Portfolio Purchase and Sale Agreement pursuant to the terms thereof, shall automatically terminate on the last day of the Inspection Period (as defined herein and in the Portfolio Purchase and Sale Agreement) unless Purchaser shall notify Seller and Portfolio Seller in the Due Diligence Waiver Notice that Purchaser (i) was able to obtain a financing commitment for the transaction described herein and in the Portfolio Purchase and Sale Agreement from any lender which lender and the terms of such loan are satisfactory to Purchaser in its sole and absolute discretion (the “ Term Financing Commitment ”) and Purchaser has provided Seller and Portfolio Seller with a fully executed copy of the Term Financing Commitment, in which case Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement, Purchaser shall proceed to closing the acquisition of the Portfolio Property pursuant to the Portfolio Purchase and Sale Agreement and iStar shall have no obligation to provide the Mezzanine Loan and iStar’s providing the Mezzanine Loan and the closing of the loan contemplated by the Term Financing Commitment shall not be conditions to Purchaser’s obligation to close hereunder or under the Portfolio Purchase and Sale Agreement, (ii) was able to obtain a financing commitment or commitments for the GE Bridge Loan from General Electric Capital Corporation (“ GECC ”) pursuant to the terms of this Agreement and the Portfolio Purchase and Sale Agreement (such single or multiple commitments are referred to herein collectively, as the “ GE Bridge Financing Commitment ”), which GE Bridge Financing Commitment is satisfactory to Purchaser in its sole and absolute discretion and must specify all major business terms of the GE Bridge Loan, including, without limitation, all major amendments to the GE Loan, and Purchaser has provided Seller and Portfolio Seller with a fully executed copy of the GE Bridge Financing Commitment, in which case iStar shall, subject to the terms of this Section 4.3.2 and Section 4.3.2 of the Portfolio Purchase and Sale Agreement, provide the Mezzanine Loan simultaneously with the closing of the GE Bridge Loan, Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement, Purchaser shall proceed to closing the acquisition of the Portfolio Property pursuant to the Portfolio Purchase and Sale Agreement and, provided Purchaser has not subsequently elected to obtain alternative financing, (x) iStar’s providing the Mezzanine Loan simultaneously with the closing of the GE Bridge Loan and (y) GECC’s closing of the GE Bridge Loan under the terms of the GE Bridge Financing Commitment on the Closing Date (unless the GE Bridge Loan fails to close as a result of (A) Purchaser’s uncured default under the GE Bridge Financing Commitment, (B) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (C) Purchaser’s failure to accept documentation for the GE Bridge Loan that is commercially reasonable for debt assumption transactions) shall be conditions to Purchaser’s obligation to close hereunder and under the Portfolio Purchase and Sale Agreement, (iii) was able to obtain a financing commitment for a Bridge Loan from GECC or any alternative senior lender the terms of which loan and identity of such lender are satisfactory to Purchaser in its sole and absolute discretion (“ Senior Lender ”) pursuant to the terms of this Agreement and the Portfolio Purchase and Sale Agreement (the “ Bridge Financing Commitment ”) and Purchaser has provided Seller and Portfolio Seller with a fully executed copy of the Bridge Financing Commitment, in which case iStar shall, subject to the terms of this Section 4.3.1 and Section 4.3.2 of the Portfolio Purchase and Sale Agreement, provide the Mezzanine Loan simultaneously with the closing of the Bridge Loan, Purchaser and Seller shall proceed to Closing pursuant to the terms and provisions of this Agreement and Purchaser shall proceed to closing the acquisition of the Portfolio Property pursuant to the Portfolio Purchase

 

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and Sale Agreement but the closing of the Bridge Loan and the Mezzanine Loan (so long as iStar is not in default of its obligation to provide the Mezzanine Loan as set forth herein and in the Portfolio Purchase and Sale Agreement) shall not be conditions to Purchaser’s obligations to close hereunder or under the Portfolio Purchase and Sale Agreement, or (iv) has not obtained the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms that are yet acceptable to Purchaser but that Purchaser (A) desires to proceed to Closing hereunder and under the Portfolio Purchase and Sale Agreement notwithstanding that Purchaser does not have the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms that are yet acceptable to Purchaser in its sole and absolute discretion and (B) requests an additional ten (10) day period (the “ Financing Commitment Extension Period ”) within which to obtain the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment on terms acceptable to Purchaser, in which case Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Portfolio Purchase and Sale Agreement), conducted all inspections and tests of the Real Property, Improvements and the Portfolio Property that it considers important, and completed its due diligence of, the Membership Interests, the Real Property, the Improvements and the Portfolio Property (items (i), (ii) and (iii) above are each referred to herein individually as a “ Financing Commitment Status Statement ”). If the Due Diligence Waiver Notice contains the information set forth in item (iv) above, prior to the end of the Financing Commitment Extension Period, Purchaser shall deliver to Seller and Portfolio Seller a notice setting forth the Financing Commitment Status Statement applicable as of the last day of the Financing Commitment Extension Period and the terms and conditions set forth above and in Section 4.3.2 of the Portfolio Purchase and Sale Agreement related thereto shall apply. If Purchaser fails to deliver the applicable Financing Commitment Status Statement and a fully executed copy of either the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment prior to the end of the Financing Commitment Extension Period, this Agreement, and the Portfolio Purchase and Sale Agreement pursuant to the terms thereof, shall automatically terminate as of the last day of the Financing Commitment Extension Period, in which case the Earnest Money shall be immediately returned to Purchaser and the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement. Any Financing Commitment Status Statement delivered by Purchaser pursuant to the terms hereof shall be the same as the Financing Commitment Status Statement delivered by Purchaser pursuant to the Portfolio Purchase and Sale Agreement. If Purchaser obtains either the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment pursuant to the terms of, and within the timeframes set forth in, this Section 4.3.1 and Section 4.3.2 of the Portfolio Purchase and Sale Agreement, then Purchaser or Seller may elect to extend the then current Closing Date from time to time to a date that is not more than ten (10) days following the then current Closing Date by delivering written notice to the other party at least two (2) days prior to the then current Closing Date, respectively, solely in order for (A) Purchaser to comply with the terms of the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment (as applicable) or to obtain alternative financing and (B) Seller to satisfy the conditions to Purchaser’s obligations to close set forth in Section 7.2.2 of this Agreement (the foregoing items (A) and (B) are each referred to herein individually as, a “ Closing Date Extension Condition ”); provided, however, neither Purchaser nor Seller shall have the right to

 

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extend the Closing Date beyond the earlier of June 24, 2010 and the required closing date of the lender providing the financing for Purchaser’s acquisition of the Membership Interests and the Portfolio Property as described in the Financing Commitment Status Statement; provided, further, no election by Purchaser or Seller to extend the Closing Date shall be valid unless either Purchaser or Seller shall have simultaneously elected to extend the closing date of the Portfolio Purchase and Sale Agreement in accordance with the terms thereof. The terms “ GE Bridge Loan ”, “ GE Loan ”, “ Bridge Loan ” and “ Mezzanine Loan ” used in this Section 4.3.2 and elsewhere in this Agreement shall have the meanings ascribed to such terms in the Portfolio Purchase and Sale Agreement.

4.4 Updated Property Information . From the Effective Date through the Closing Date, if and to the extent that Seller, AFE or any Subsidiary receives from an unaffiliated third-party any additional Property Information not previously provided to Purchaser, or if and to the extent that Seller, AFE or any Subsidiary receives any document, notice or correspondence from an unaffiliated third-party or otherwise obtains actual knowledge from an unaffiliated third-party source of a condition arising after the Effective Date that would render any of the representations and warranties of Seller in Section 9.1 untrue if and to the extent remade after the Effective Date, Seller shall promptly so notify Purchaser and shall make electronic copies of all such documents, notices, correspondence or other information in Seller’s, AFE’s or the Subsidiaries’ possession (“ Updated Property Information ”) available to Purchaser on iPortal. Updated Property Information may include any information disclosed in the Tenant Estoppel Certificate, but such updated information shall remain subject to Purchaser’s rights pursuant to Section 7.2.1(1) and 7.2.3. The representations and warranties of Seller in Section 9.1 shall be deemed amended to reflect such Updated Property Information, provided that if the amendment or deemed amendment of any representation or warranty reflects a fact or circumstance that would trigger a termination, extension or other right of Purchaser under this Agreement, the amendment or deemed amendment of any representation or warranty to reflect such fact or circumstance shall not vitiate such right of Purchaser. Additionally, Seller shall notify or indirectly cause PXLA to notify Mack-Cali of the pending sale and transfer of the Membership Interests to Purchaser pursuant to this Agreement and request that Mack-Cali immediately notify PXLA and Seller of any notice received affecting the Financial Agreement, the Schwab Lease, the Real Property or Improvements and any other item for which Mack-Cali is responsible under the Mack-Cali Management Agreement.

4.5 Return of Documents and Reports . As additional consideration for the transaction contemplated herein, if Purchaser terminates this Agreement, Purchaser shall provide to Seller, if requested by Seller, promptly following the receipt of notice from Seller after the termination of this Agreement, copies of all “Reports”. “ Reports ” mean (a) written third-party reports, tests, investigations and studies that pertain to contamination of, or environmental concerns regarding, the Real Property or Improvements delivered to Purchaser or its affiliates, and (b) all other written third party reports, investigations and studies, other than economic analyses in each case under (a) and (b) prepared for Purchaser in connection with its due diligence review of the Real Property and Improvements, including, without limitation, any and all Reports involving structural or geological conditions, environmental, hazardous waste or hazardous substances contamination of the Real Property or Improvements, if any. The Reports shall not include any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the

 

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Property, Improvements and/or Purchaser, or which are subject to a confidentiality agreement. The Reports shall be delivered to Seller at no cost to Seller and without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto. Purchaser’s obligation to deliver the Reports to Seller shall survive the termination of this Agreement.

4.6 Service Contracts . On or prior to the Closing Date, Purchaser will advise Seller in writing which Service Contracts Purchaser requests that Seller, AFE or the Subsidiaries (in each case, to the extent applicable) terminate at or prior to Closing, provided Seller, AFE and the Subsidiaries (in each case, to the extent applicable) shall have no obligation to terminate any Service Contracts which by their terms cannot be terminated without penalty or payment of a fee (unless Purchaser agrees in writing to pay such fee). Seller shall deliver at Closing notices of termination of all Service Contracts that Purchaser so directs. AFE and the Subsidiaries (in each case, to the extent applicable) shall from and after the Closing Date continue to be bound by those Service Contracts (a) that Purchaser has elected not to have Seller, AFE or the Subsidiaries (in each case, to the extent applicable) terminate, and (b) for which a termination notice is delivered as of or prior to Closing but for which termination is not effective until after Closing. Notwithstanding the foregoing, Seller, AFE and the Subsidiaries (in each case, to the extent applicable) shall not be obligated to terminate the Mack-Cali Management Agreement and, to the extent not terminated on or prior to the Closing Date, PXLA, the Real Property and Improvements shall continue to be bound by the obligations of the Mack-Cali Management Agreement from and after the Closing Date.

4.7 Proprietary Information; Confidentiality . Purchaser agrees that it is bound by the Confidentiality Agreement as if it were a party thereto, and the Confidentiality Agreement remains in full force and effect. Notwithstanding anything to the contrary set forth in the Confidentiality Agreement, (a) each party acknowledges that the other party shall be allowed to disclose the existence of this Agreement and the contents thereof in order to comply with certain disclosure requirements relating to public companies and their affiliates and (b) provided Purchaser has delivered the Due Diligence Waiver Notice pursuant to Section 4.3.1 hereof, Purchaser shall be allowed to disclose the existence of this Agreement, and deliver the Property Information and Updated Property Information, to third parties in connection with such third parties’ potential acquisition from Purchaser of the Membership Interests, the Real Property, the Improvements or interests therein after the Closing Date so long as such third parties have agreed in writing to be bound by the terms of the Confidentiality Agreement prior to Purchaser’s disclosure of the existence of this Agreement, and delivery of the Property Information and Updated Property Information, to such third parties. The parties shall coordinate, in advance, with respect to any such public filings and/or press releases. After the Closing there shall be no restriction as between Purchaser, on the one hand, and Seller, AFE, PXR, PXURA and PXLA, on the other hand, on Purchaser’s disclosure of Property Information or Updated Property Information.

4.8 No Representation or Warranty by Seller . Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Documents, the Updated Property Information or the source(s) thereof. Purchaser further acknowledges that some if not all of the Property Documents and Updated Property Information

 

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were prepared by third parties other than Seller, AFE and the Subsidiaries. Except as expressly set forth in this Agreement or in any of the documents delivered at the Closing, (a) Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents or Updated Property Information, or in any other written or oral communications transmitted or made available to Purchaser, (b) Purchaser shall rely solely upon its own investigation with respect to the Membership Interests, the Real Property and the Improvements, including, without limitation, their physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto, and (c) Seller, AFE and the Subsidiaries have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Documents and Updated Property Information and are providing the Property Documents and Updated Property Information solely as an accommodation to Purchaser.

4.9 Purchaser’s Responsibilities . In conducting any inspections, investigations or tests of the Real Property, Improvements, Property Documents and/or Updated Property Information, Purchaser and its agents and representatives shall: (a) not disturb the tenants or interfere with their use of the Real Property or Improvements pursuant to their respective Leases; (b) not interfere with the operation and maintenance of the Property; (c) not damage any part of the Real Property, Improvements or any personal property owned or held by any tenant or any third party; (d) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or any tenants or their agents, guests, invitees, contractors and employees; (e) comply with all applicable laws; (f) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Real Property or Improvements; (g) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (h) subject to the provisions of Section 4.10, repair any damage to the Real Property or Improvements resulting directly or indirectly from any such inspection or tests; and (i) not reveal or disclose prior to Closing any information obtained during the Inspection Period concerning the Real Property, the Improvements, the Property Documents and the Updated Property Information to anyone other than the Permitted Recipients (as defined in the Confidentiality Agreement), in accordance with the confidentiality standards set forth in Section 4.7 above, or except as may be otherwise required by law. Purchaser’s obligations under this Section 4.9 shall survive the termination of this Agreement.

4.10 Purchaser’s Agreement to Indemnify . Purchaser hereby agrees to indemnify, defend and hold Seller, AFE, PXR, PXURA and PXLA harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests permitted under this Agreement or any violation of the provisions of Sections 4.2, 4.7, and 4.9; provided, however, the indemnity shall not protect Seller, AFE, PXR, PXURA and PXLA from any liabilities for matters merely discovered by Purchaser (i.e., environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of Seller, AFE, PXR, PXURA and PXLA it being agreed by Purchaser and Seller that the mere discovery by Purchaser of such matters shall not constitute an aggravation of any pre-existing liability of Seller, AFE, PXR, PXURA and PXLA. Notwithstanding the foregoing, Seller and Purchaser acknowledge and agree that Purchaser may communicate with representatives of Jersey City, New Jersey and the Jersey City Redevelopment Authority, as applicable, concerning the Financial Agreement and compliance

 

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therewith by Seller, AFE or the Subsidiaries, and such communications shall not be deemed to aggravate any pre-existing liability of Seller, AFE or the Subsidiaries under this Section 4.10. Purchaser also hereby agrees to indemnify, defend and hold any tenant harmless from and against any and all claims, causes of action, damages, liabilities and expenses which such tenant may suffer or incur due to Purchaser’s breach of its obligation under Sections 4.7 and 4.9 above to maintain the confidential nature of any Property Documents, Updated Property Information or other information relative to such tenant. Purchaser’s obligations under this Section 4.10 shall survive the termination of this Agreement and shall survive the Closing.

ARTICLE 5

TITLE AND SURVEY

5.1 Title Commitments . Purchaser acknowledges that a copy of a current commitment for title insurance or a preliminary title report with respect to the Real Property, together with copies of all documents of record referred to therein (the “ Title Commitment ”) issued by First American on an ALTA 2006 Owner’s Form or state promulgated form has been delivered or made available to Purchaser.

5.2 Updated Surveys . Purchaser has arranged, at Seller’s expense, for the preparation of a new survey or the revision, modification, or re-certification of the existing Survey as necessary in order for First American to delete the survey exception from the Title Policy.

5.3 Title Review . During the Title and Survey Review Period, Purchaser shall review title to the Real Property as disclosed by the Title Commitment and the Survey. Seller shall have no obligation to cure title objections except liens of an ascertainable amount created by, under or through Seller, AFE, PXR, PXURA or PXLA, or assumed by Seller, AFE, PXR, PXURA or PXLA, which liens Seller shall cause to be released at or prior to Closing (with Seller having the right to apply the Purchase Price or a portion thereof for such purpose), and Seller, AFE, PXR, PXURA or PXLA shall deliver the Real Property and Improvements free and clear of any such liens; provided, however, that the foregoing requirement to discharge liens shall not apply to liens on any tenant’s leasehold estate. Seller further agrees to remove any exceptions or encumbrances to title which are voluntarily created by, under or through Seller, AFE, PXR, PXURA or PXLA after the Effective Date without Purchaser’s consent (if requested, such consent shall not be unreasonably withheld or delayed). The term “ Permitted Exceptions ” shall mean: (A) the exceptions (i) that are part of the promulgated title insurance form for each Title Commitment, (ii) that the Title Company is unable to remove under applicable insurance regulations, (iii) that the Title Company has not agreed to remove from the Title Commitments notwithstanding that Seller, AFE, PXR, PXURA and PXLA have delivered the Title Affidavits to the Title Company, (iv) that Purchaser consents to, or is deemed to have consented to, as of the end of the Title and Survey Review Period and (v) that Seller is not required to remove as provided above; (B) matters created by, through or under Purchaser; (C) items shown on the Survey which have not been removed as of the end of the Inspection Period (or if Purchaser does not obtain a new Survey, all matters that a current, accurate survey of the Real Property and Improvements would show); (D) real estate taxes and payments under the Financial Agreement, which are not yet due and payable; (E) rights of tenants under the Leases; and (F) any encumbrances relating to the Property created by, though or under any tenant of the Property that does not render title to the Property unmarketable, provided such tenant is not otherwise in default under its Lease.

 

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5.4 Delivery of Title Policy and Non-Imputation Endorsement at Closing . The parties acknowledge that First American Title Insurance Company, National Commercial Services – Chicago (“ First American ”) and Fidelity Title Insurance Company (“ Fidelity ”) constitute the Title Company. First American shall act as the lead Title Company and underwriter and shall issue the Title Policy and the Non-Imputation Endorsement; provided, however, that Purchaser may obtain co-insurance from Fidelity in the amount of up to fifty percent (50%) of the Purchase Price of the Property in the form of a co-insurance endorsement (“ Co-Insurance ”) so long as (i) the cost of such Co-Insurance does not increase the total cost of title insurance that Seller would otherwise pay to First American if First American were insuring the full Purchase Price unless Purchaser pays for such increased cost of title insurance and (ii) the issuance of such Co-Insurance does not delay the Closing. Purchaser, at Purchaser’s sole cost and expense, may obtain re-insurance with respect to the Title Policy from such third parties as Purchaser may elect so long as obtaining such re-insurance does not delay the Closing. In the event that the Title Company does not issue at Closing, or unconditionally commit at Closing to issue, to Purchaser, (i) owner’s title insurance policy and Co-Insurance in accordance with the Title Commitment with Extended Coverage, insuring AFE’s title interest in the Real Property in the amount of the Purchase Price, subject only to the exclusions from coverage contained in the policy and the Permitted Exceptions (the “ Title Policy ”) and (ii) a non-imputation endorsement in the form approved for issuance in the State of New Jersey (the “ Non-Imputation Endorsement ”), Purchaser shall have the right to terminate this Agreement, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement; provided, however, if either Title Company alone is willing to deliver the Title Policy in the amount of the Purchase Price and the Non-Imputation Endorsement, Purchaser agrees to accept such Title Policy and Non-Imputation Endorsement and Purchaser shall have no right to terminate this Agreement.

ARTICLE 6

OPERATIONS AND RISK OF LOSS

6.1 Ongoing Operations . From the Effective Date through Closing:

6.1.1 Leases, Service Contracts and License Agreements . Seller will cause AFE, PXR, PXURA and PXLA to perform their material obligations under the Leases, Service Contracts and License Agreements unless AFE, PXR, PXURA or PXLA are excused from performing such obligations pursuant to such Leases, Services Contracts and License Agreements.

6.1.2 New Contracts . Except as provided in Section 6.1.4, Seller will not cause AFE, PXR, PXURA and PXLA to enter into any contract that will be an obligation affecting the Real Property or Improvements subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than 30 days’ prior notice.

 

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6.1.3 Maintenance of Improvements; Removal of Personal Property . Subject to Sections 6.2 and 6.3, Seller shall cause AFE, PXR, PXURA and PXLA to maintain or cause AFE, PXR, PXURA and PXLA to use reasonable efforts to cause the tenants under the Leases to maintain all Improvements substantially in their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent with AFE’s, PXR’s, PXURA’s and PXLA’s maintenance of the Improvements during AFE’s period of ownership. Seller will cause AFE, PXR, PXURA and PXLA not to remove any Tangible Personal Property except as may be required for necessary repair or replacement or with respect to items that, in Seller’s judgment are obsolete, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property.

6.1.4 Leasing; License Agreements . As used in this Section 6.1.4, “ sublease ” means a sublease, sub-sublease and any other sublease at any level. Seller will cause AFE, PXR, PXURA and PXLA not to (i) amend or terminate any existing Lease or License Agreement, (ii) consent to the assignment of any Lease or License Agreement, (iii) enter into any new Lease or new License Agreement, (iv) grant their consent, to the extent AFE’s, PXR’s, PXURA’s or PXLA’s consent is required, to a sublease of the Real Property, a modification of a sublease, an assignment of a sublease or other item for which a consent is required under any Lease or License Agreement or (v) grant an acknowledgement with respect to a sublease of the Real Property, a modification of a sublease or an assignment of a sublease (the foregoing items (i), (ii), (iii), (iv) and (v) are each referred to herein as, a “ Lease Event ”) after the Effective Date and prior to the Closing Date without first providing Purchaser (a) all relevant supporting documentation, as reasonably determined by Seller, including, without limitation, financial information for the assignee, tenant, subtenant and any guarantor to the extent in Seller’s, AFE’s, PXR’s, PXURA’s or PXLA’s possession, and (b) as to any Lease Event which is to be executed or granted after the expiration of the Inspection Period, Seller’s request for Purchaser’s approval. If Purchaser’s approval is requested by Seller as to any Lease Event, Purchaser shall be held to the same standard for approval as Seller, AFE, PXR, PXURA, or PXLA, as applicable, is held to in the document giving rise to such approval, consent, or acknowledgement right, and Purchaser agrees to give Seller written notice of its approval or disapproval of a proposed Lease Event within three (3) Business Days after Purchaser’s receipt of the items in Section 6.1.4(a) and Section 6.1.4(b). If Purchaser does not respond to Seller’s request within such time period, then Purchaser will be deemed to have approved such Lease Event. Purchaser’s approval rights and obligations will vary depending on whether such Lease Event is to be executed or granted before or after the expiration of the Inspection Period, as follows:

(1) Purchaser’s approval shall not be required with regard to any Lease Event which is to be executed or granted on or prior to the end of the Inspection Period. If Seller gives Purchaser notice of the execution or grant of a Lease Event during the final three (3) Business Days of the Inspection Period, the Inspection Period will be extended to the third (3 rd ) Business Day following the date such notice is given to Purchaser.

(2) With respect to a request for approval delivered by Seller to Purchaser for the execution or grant of a Lease Event after the expiration of the Inspection Period, so long as Purchaser has complied with the standard for review described above, Purchaser may withhold its approval in its reasonable discretion, and Seller will cause AFE, PXURA and PXLA not to execute or grant such Lease Event without Purchaser’s written approval.

 

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Seller shall cause AFE, PXR, PXURA and PXL, as applicable, not to apply any tenant or licensee security deposits on account of any alleged default by any tenant or licensee after the earlier of three (3) Business Days before the end of the Inspection Period and the date when Purchaser has delivered the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof unless AFE, PXR, PXURA or PXLA (as applicable) has terminated the applicable Lease or License Agreement and obtained possession of the demised or licensed premises. All tenant and licensee security deposits collected and not applied by AFE, PXR, PXURA or PXLA as of the Effective Date are set forth on Schedule 6.1.4 . Seller shall deliver to Purchaser three (3) Business Days before the end of the Inspection Period an update to Schedule 6.1.4 to reflect the current amount of all security deposits collected and not applied by AFE, PXR, PXURA or PXLA as of such date.

6.1.5 Insurance . Seller will cause AFE, PXR, PXURA and PXLA not to terminate or allow any insurance maintained by AFE, PXR, PXURA or PXLA with respect to the Real Property or Improvements or any umbrella coverage insurance carried by any affiliate of Seller which insures the Real Property to lapse unless replaced by equivalent coverage. Promptly upon Purchaser’s delivery of the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, Seller shall cause AFE, PXR, PXURA and PXLA and Seller’s affiliates to name Purchaser as an additional insured on all insurance maintained by AFE, PXR, PXURA and PXLA with respect to the Real Property or Improvements and on all umbrella insurance coverage carried by any affiliate of Seller which insures the Real Property.

6.1.6 No Amendment . After the Effective Date, Seller shall not, and Seller shall not permit AFE or any Subsidiary (as applicable), to amend the AFE LLC Agreement or the Subsidiaries LLC Agreements. After the Effective Date through the fourth (4th) Business Day prior to the expiration of the Inspection Period, Seller may, and Seller may cause AFE or the Subsidiaries (as applicable) to, amend the Mack-Cali Management Agreement or the Financial Agreement, in each case without Purchaser’s prior consent so long as Seller has provided prior notice thereof to Purchaser. From and after the third (3rd) Business Day prior to the expiration of the Inspection Period through Closing, Seller shall not, and Seller shall not permit AFE or any Subsidiary to, amend the Mack-Cali Management Agreement or the Financial Agreement, in each case without Purchaser’s consent (it being agreed that the settlement of the pending audit related to the Financial Agreement shall be governed by Section 8.1.3 below).

6.1.7 No Merger . Seller shall not permit AFE or any Subsidiary to merge or consolidate with or agree to merge or consolidate with, or purchase or agree to purchase all or substantially all of the assets of, or otherwise acquire, any corporation, partnership or other business organization.

6.1.8 Interests . Seller shall not permit AFE or any Subsidiary to authorize for issuance, issue, sell or delivery any additional membership interests in AFE or any Subsidiary or grant any option, warrant or other right to purchase any such membership interests. Seller shall not permit AFE or any Subsidiary to split, combine or reclassify any of the membership interests of AFE or any Subsidiary.

 

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6.1.9 Debt . Seller shall not permit AFE or any Subsidiary to incur or become subject to, nor agree to incur, any debt for borrowed money, guaranty any indebtedness, or incur any liabilities other than and specifically excluding liabilities incurred in the ordinary course of business related to the ownership and management of the Real Property and Improvements.

6.1.10 Conditions and Obligations . To the extent performance of any obligation of Seller under this Agreement or the satisfaction of any condition of Purchaser’s obligation to close requires the performance of AFE or any of the Subsidiaries, Seller shall cause AFE and the applicable Subsidiary, as the case may be, to perform or satisfy same.

6.2 Casualty . If after the Effective Date and prior to the Closing the Real Property or Improvements is damaged by fire or other casualty (a “ Casualty ”), Seller shall, promptly upon Seller, AFE, PXR, PXURA or PXLA receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Casualty, Schwab is entitled to and elects to terminate its Lease with respect to the Real Property or Improvements (a “ Casualty Tenant Termination Event ”), then Seller shall promptly upon Seller, AFE, PXR, PXURA or PXLA receiving notice of such Casualty Tenant Termination Event notify Purchaser of the same (a “ Casualty Tenant Termination Notice ”). Within five (5) days after receipt of the Casualty Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) terminate this Agreement in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Casualty Tenant Termination Event. If (i) Purchaser elects to acquire the Membership Interests notwithstanding the Casualty Tenant Termination Event or fails to terminate this Agreement with respect to the Membership Interests within such five (5) day period, or (ii) such Casualty does not give rise to a Casualty Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, (1) Seller shall provide written confirmation that any resulting insurance proceeds (including any rent loss insurance and rent abatement insurance applicable to any period beginning with the Closing Date) due AFE, PXR, PXURA, PXLA or an affiliate of Seller as a result of such Casualty will be available after Closing to AFE, PXR, PXURA and PXLA to effectuate the needed repairs, (2) AFE, PXR, PXURA and PXLA shall maintain full responsibility for all needed repairs (subject to the terms of the Schwab Lease with respect to any rights of Schwab), and (3) Purchaser shall receive a credit at Closing for any deductible amount under such insurance policies to the extent not payable by Schwab. Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to the Real Property or Improvements and, as a result of such Casualty, the lender providing the Term Financing Commitment will not close the loan contemplated by the Term Financing Commitment with respect to the Membership Interests, GECC will not close the GE Bridge Loan with respect to the Membership Interests or Senior Lender will not close the Bridge Loan with respect to the Membership Interests (as applicable pursuant to Section 4.3.2), then, this Agreement shall automatically terminate in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

 

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6.3 Condemnation . If after the Effective Date and prior to the Closing Seller, AFE, PXR, PXURA or PXLA receives notice of, or proceedings are instituted for, eminent domain with respect to the Real Property or Improvements or any portion thereof (a “ Condemnation ”), Seller shall, promptly upon Seller, AFE, PXR, PXURA or PXLA receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Condemnation, Schwab is entitled to and elects to terminate its Lease with respect to the Real Property or Improvements (a “ Condemnation Tenant Termination Event ”), then Seller shall promptly upon Seller, AFE, PXR, PXURA or PXLA receiving notice of such Condemnation Tenant Termination Event notify Purchaser of the same (a “ Condemnation Tenant Termination Notice ”). Within five (5) days after receipt of the Condemnation Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) terminate this Agreement in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Condemnation Tenant Termination Event. If (i) Purchaser elects to acquire the Membership Interests notwithstanding the Condemnation Tenant Termination Event or fails to terminate this Agreement with respect to the Membership Interests within such five (5) day period, or (ii) such Condemnation does not give rise to a Condemnation Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, AFE, PXR, PXURA and PXLA shall maintain the right to negotiate and otherwise deal with the condemning authority in respect of such Condemnation (subject to the terms of the Schwab Lease with respect to any rights of Schwab). Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to the Real Property and, as a result of such Condemnation, the lender providing the Term Financing Commitment will not close the loan contemplated by the Term Financing Commitment with respect to the Membership Interests, GECC will not close the GE Bridge Loan with respect to the Membership Interests or Senior Lender will not close the Bridge Loan with respect to the Membership Interests (as applicable pursuant to Section 4.3.2), then this Agreement shall automatically terminate in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

6.4 Tenant Estoppel Certificate/SNDA/Management Agreement Estoppel Certificate .

6.4.1 Purchaser and Seller acknowledge and agree that as of the Effective Date PXLA has sent to Schwab (with a copy to Purchaser) an estoppel certificate in the form approved by Purchaser (the “ Tenant Estoppel Certificate ”). Purchaser acknowledges that it has approved the form of the Tenant Estoppel Certificate sent to Schwab as of the Effective Date. Seller, AFE, PXR, PXURA and PXLA shall not be obligated to expend any funds in connection with obtaining the Tenant Estoppel Certificate, declare any default under the Schwab Lease or commence any legal action for enforcement of the Schwab Lease in order to obtain the Tenant Estoppel Certificate. Seller shall copy Purchaser on the initial correspondence soliciting the Tenant Estoppel Certificate and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums,

 

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e-mails, comments and conditions, received from Schwab in connection with the Schwab’s execution of the Tenant Estoppel Certificate. If the executed Tenant Estoppel Certificate is dated more than thirty (30) days prior to the Closing Date, Seller agrees, upon the request of Purchaser, to send Schwab a request for an updated Tenant Estoppel Certificate or a letter of no change to the executed Tenant Estoppel Certificate; provided, however, obtaining such updated Tenant Estoppel Certificate or letter of no change shall (i) not be a condition to Purchaser’s obligation to close pursuant to Section 7.2.2 and (ii) in no way delay the Closing, it being agreed by Purchaser that the Tenant Estoppel Certificate executed and delivered in the form approved by Purchaser regardless of the date executed by Schwab shall satisfy Purchaser’s condition to close pursuant to Section 7.2.2.

6.4.2 Upon receipt from Purchaser of drafts of estoppel certificates addressed to the parties listed on Schedule 6.4.2 (individually, a “ Third Party Estoppel Certificate ” and collectively, the “ Third Party Estoppel Certificates ”), Seller, on behalf of AFE, PXR, PXURA or PXLA (as applicable), shall promptly send such Third Party Estoppel Certificates to the parties listed on Schedule 6.4.2 . Seller, AFE, PXR, PXURA and PXLA shall not be obligated to expend any funds in connection with obtaining any such Third Party Estoppel Certificates, declare any default under any agreement or commence any legal action for enforcement of any agreement in order to obtain any such Third Party Estoppel Certificates. Seller shall copy Purchaser on the initial correspondence soliciting the Third Party Estoppel Certificates and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the third parties in connection with the third parties’ execution of the Third Party Estoppel Certificates.

6.4.3 Seller shall promptly after the date on which Purchaser obtains the Term Financing Commitment, the GE Bridge Financing Commitment or the Bridge Financing Commitment send to Schwab a subordination, non-disturbance and attornment agreement substantially in the form executed by Schwab in connection with the closing of the GE Loan (the “ SNDA ”). Seller, AFE, PXR, PXURA and PXLA shall not be obligated to expend any funds in connection with obtaining the SNDA, declare any default under the Schwab Lease or commence any legal action for enforcement of the Schwab Lease in order to obtain the SNDA. Seller shall copy Purchaser on the initial correspondence soliciting the SNDA and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from Schwab in connection with Schwab’s execution of the SNDA.

6.4.4 Purchaser and Seller acknowledge and agree that as of the Effective Date PXLA has sent to Mack-Cali (with a copy to Purchaser) an estoppel certificate in the form approved by Purchaser (the “ Management Agreement Estoppel Certificate ”). Purchaser acknowledges that it has approved the form of the Management Agreement Estoppel Certificate sent to Mack-Cali as of the Effective Date. Seller shall copy Purchaser on the initial correspondence soliciting the Management Agreement Estoppel Certificate and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from Mack-Cali in connection with the Mack-Cali’s execution of the Management Agreement Estoppel Certificate.

 

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ARTICLE 7

CLOSING

7.1 Closing . The consummation of the transaction contemplated herein (“ Closing ”) shall occur on the Closing Date at the offices of Escrow Agent (or such other location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record those closing documents which are to be recorded, and deliver originals or copies of the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.

7.2 Conditions to Parties’ Obligation to Close . In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder are conditioned upon the following:

7.2.1 Conditions to Seller’s Obligations to Close .

(1) Representations and Warranties . Purchaser’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date;

(2) Deliveries . As of the Closing Date, Purchaser shall have tendered all deliveries to be made by Purchaser at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Purchaser that would materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement; and

(4) Portfolio Purchase and Sale Agreement . It shall be a condition to Seller’s obligation to close hereunder that the closing of the sale of the Portfolio Property to Purchaser pursuant to the Portfolio Purchase and Sale Agreement occur simultaneously with the Closing of the sale of the Membership Interests pursuant to this Agreement.

7.2.2 Conditions to Purchaser’s Obligations to Close .

(1) Representations and Warranties . Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date, subject to the provisions of Sections 4.4 and 9.3. Notwithstanding Sections 4.4 and 9.3, Seller and Purchaser acknowledge and agree that Section 7.2.3 shall apply to any material change in the representations and warranties of Seller due to any Updated Property Information or changes that that are not a result of a breach by Seller or any of its covenants;

 

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(2) Deliveries . As of the Closing Date, Seller shall have tendered and shall have caused AFE, PXR, PXURA and PXLA to have tendered all deliveries to be made by Seller, AFE, PXR, PXURA and PXLA at Closing;

(3) Actions, Suits, etc . There shall exist (i) no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller, AFE, PXR, PXURA or PXLA that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement or (ii) no objection to the transaction hereunder by the City of Jersey City or the Jersey City Redevelopment Authority;

(4) Tenant Estoppel Certificate . Seller shall have delivered to Purchaser the Tenant Estoppel Certificate;

(5) Occupancy/Non Bankruptcy . It shall be a condition to Purchaser’s obligations to close hereunder that (a) as of the Closing Date, Schwab shall have not terminated, or given notice of intent to terminate, its Lease, except with respect to a Casualty Tenant Termination Event or a Condemnation Tenant Termination Event and (b) from the end of the Inspection Period through the Closing Date, Schwab shall have not vacated, abandoned or ceased operations at the Real Property, or filed for voluntary or involuntary bankruptcy or similar protection;

(6) Closing of GE Bridge Loan/Mezzanine Loan . If Purchaser has elected pursuant to Section 4.3.1 to proceed to Closing with (i) the GE Bridge Financing Commitment and has not elected thereafter to take an alternative financing, (A) the closing of the Mezzanine Loan simultaneously with the Closing and (B) the closing of the GE Bridge Loan on the Closing Date (unless the GE Bridge Loan fails to close as a result of (x) Purchaser’s uncured default under the GE Bridge Financing Commitment, (y) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (z) Purchaser’s failure to accept documentation for the GE Bridge Loan that is commercially reasonable for debt assumption transactions and implementation of such modifications to the GECC Loan as are specifically set forth in the GE Bridge Financing Commitment) be conditions to Purchaser’s obligation to close hereunder or (ii) the Bridge Financing Commitment and has not elected thereafter to take an alternative financing, iStar being ready, willing and able to close the Mezzanine Loan on the Closing Date is a condition to Closing and, if the Bridge Loan closes, the closing of the Mezzanine Loan simultaneously therewith is a condition to Closing. In no event shall the closing of (w) the loan contemplated by the Term Financing Commitment, (x) the Bridge Loan or (y) any alternative financing be a condition of Purchaser’s obligation to close hereunder;

(7) Intentionally Deleted ;

 

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(8) Title Policy and Non-Imputation Endorsement . It shall be a condition to Purchaser’s obligations to close hereunder that the Title Company shall have issued the Title Policy, Co-Insurance and the Non-Imputation Endorsement subject to, and in accordance, with Section 5.4;

(9) Portfolio Purchase and Sale Agreement . It shall be a condition to Purchaser’s obligation to close hereunder that the sale of the Portfolio Property to Purchaser pursuant to the Portfolio Purchase and Sale Agreement occur simultaneously with the Closing of the sale of the Membership Interests pursuant to this Agreement;

(10) SNDA . It shall be a condition to Purchaser’s obligation to close hereunder that Seller shall have delivered the SNDA;

(11) Management Agreement Estoppel Certificate . It shall be a condition to Purchaser’s obligation to close hereunder that Seller shall have delivered the Management Agreement Estoppel Certificate.

7.2.3 Failure to Satisfy Conditions . So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date (or such earlier date as is provided herein), subject to any applicable notice and cure periods provided in Sections 10.1 and 10.2, such party may, in its sole discretion either (i) terminate this Agreement in its entirety by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein) and Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) elect to close notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. In the event such party elects to close, notwithstanding the non-satisfaction of such condition, said party shall be deemed to have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to close had knowledge at the Closing.

7.3 Seller’s Deliveries in Escrow . As of or prior to the Closing Date, Seller shall deliver, or shall cause the delivery by AFE and each Subsidiary, as applicable, in escrow to Escrow Agent the following:

7.3.1 Assignment and Assumption of Membership Interests . An assignment and assumption of membership interests in substantially the form of Exhibit B hereto (the “ Assignment and Assumption ”);

7.3.2 Intentionally Deleted .

7.3.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing and transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local laws in connection with the transfer of the Membership Interests;

 

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7.3.4 FIRPTA . A Foreign Investment in Real Property Tax Act affidavit in the form of Exhibit D hereto executed by Seller;

7.3.5 Authority . Evidence of the existence and authority of Seller, AFE, PXR, PXURA and PXLA and of the authority of the persons executing documents on behalf of Seller, AFE, PXR, PXURA and PXLA reasonably satisfactory to First American;

7.3.6 Title Affidavits . Title affidavits in form reasonably required by First American as to the rights of tenants in occupancy, the status of mechanics’ liens and “gap” indemnities, and such other matters as the First American may reasonably require in order to issue the Title Policy and the Non-Imputation Endorsement (collectively, the “ Title Affidavits ”);

7.3.7 Additional Documents . Any additional documents that First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller, AFE, PXR, PXURA or PXLA or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement);

7.3.8 Tenant Estoppel Certificates/Seller Estoppels . If received by Seller, the Tenant Estoppel Certificate, it being agreed that the failure of Seller to obtain the Tenant Estoppel Certificate shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.9 Third Party Estoppel Certificates . Such Third Party Estoppel Certificates as Seller shall have received, it being agreed that the failure of Seller to obtain any such Third Party Estoppel Certificates shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.10 Company Matters .

(1) The Books and Records.

(2) A Uniform Commercial Code Search, indicting that the Membership Interests and the limited liability company interests in AFE and the Subsidiaries are unencumbered by an lien, encumbrance or other security interest thereon, except for liens, encumbrances or security interests in favor of GE pursuant to the GE Loan, and federal and state law searches for Seller and each of the Subsidiaries indicating the absence of any bankruptcy proceeding, federal or state tax lien, litigation and unsatisfied judgments.

(3) A good standing certificate dated within thirty (30) days of the Closing Date from the Secretary of State of New Jersey as to the good standing of AFE and each of the Subsidiaries in the State of New Jersey.

(4) True, correct and complete copies of all insurance policies maintained by iStar on behalf of AFE and the Subsidiaries.

 

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7.3.11 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Seller in Section 9.1 are true and accurate as of the Closing Date, subject to Section 4.4 and the first sentence of Section 9.3;

7.3.12 Updated Rent Roll . A Rent Roll updated to the Closing Date, or as close as possible; and

7.3.13 SNDA . If received by Seller, the SNDA, it being agreed that the failure of Seller to obtain the SNDA shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price.

7.4 Purchaser’s Deliveries in Escrow . As of or prior to the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the following:

7.4.1 Assignment and Assumption . An executed counterpart to the Assignment and Assumption.

7.4.2 Intentionally Deleted .

7.4.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by applicable state and local laws in connection with the transfer of the Membership Interests;

7.4.4 Authority . Evidence of the existence, organization and authority of Purchaser and of the authority of the persons executing documents on behalf of Purchaser reasonably satisfactory to First American;

7.4.5 Additional Documents . Any additional documents that Seller, Escrow Agent or First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement); and

7.4.6 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Purchaser in Section 9.2 are true and accurate as of the Closing Date.

7.5 Closing Statements . As of or prior to the Closing Date, Seller and Purchaser shall deposit with Escrow Agent an executed closing statement with respect to the adjustments herein in the form required by Escrow Agent. Seller shall provide a draft of the same at least one week prior to the scheduled Closing Date.

7.6 Purchase Price . At or before 3:00 p.m. (Eastern Time) on the Closing Date, Purchaser shall deliver to Escrow Agent the Purchase Price, less the Earnest Money, plus or minus applicable prorations and any adjustment to the Purchase Price made in accordance with the terms of this Agreement, in immediate, same-day U.S. federal funds wired for credit into Escrow Agent’s escrow account, which funds must be delivered in a manner to permit Escrow

 

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Agent to deliver good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer); in the event that Escrow Agent is unable to deliver good funds to Seller or its designee prior to 4:00 p.m. (Eastern Time) on the Closing Date, then the closing statements and related prorations will be revised as necessary. To the extent that Escrow Agent is unable to provide the amount of interest constituting part of the Earnest Money up to the Closing Date, Escrow Agent shall promptly remit any such interest not applied against the Purchase Price to Purchaser after the Closing.

7.7 Possession . As of Closing, there shall be no change in AFE’s, PXURA’s and PXLA’s possession of the Real Property and Improvements.

7.8 Delivery of Books and Records . Within ten (10) Business Days after the Closing, Seller shall deliver to the offices of Purchaser: (i) original Lease File; (ii) original Service Contracts and License Agreements, (iii) to the extent in Seller’s, AFE’s, PXR’s, PXURA’s or PXLA’s possession: (a) maintenance records and warranties; (b) plans and specifications; (c) licenses, permits and certificates of occupancy; (d) copies or originals of all books and records of account, contracts, and copies of correspondence with tenants and suppliers; (e) advertising materials; (f) booklets; and (g) keys; and (iv) the Books and Records.

7.9 Notice to Schwab, Tenant’s and Licensees . Seller and Purchaser shall each execute and Purchaser shall deliver (i) to Schwab immediately after the Closing, a notice regarding the sale in substantially the form of Exhibit G hereto, or such other form as may be required by applicable state law and (ii) notice letters in the form of Exhibit G to the Portfolio Purchase and Sale Agreement to any tenants or licensees of AFE, PXURA or PXLA. This obligation on the part of Purchaser shall survive the Closing.

ARTICLE 8

PRORATIONS, DEPOSITS, COMMISSIONS

8.1 Prorations for Taxes . To the extent tenants are required to pay real and personal ad valorem taxes and payments pursuant to the Financial Agreement (“ Taxes ”) directly under their respective Leases, Taxes will not be prorated, and accordingly, Purchaser shall look solely to the tenants under their respective Leases for payment of all Taxes. To the extent tenants are not required to pay Taxes directly under their respective Leases, then the following shall apply with respect to the proration of Taxes:

8.1.1 If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing; and

8.1.2 Any additional Taxes relating to the year of Closing arising out of a change in ownership shall be assumed by Purchaser effective as of Closing and paid by Purchaser when due and payable, and Purchaser shall indemnify Seller from and against any and all such Taxes, which indemnification obligation shall survive the Closing.

8.1.3 Purchaser and Seller shall reasonably cooperate to file all tax returns of AFE and the Subsidiaries in respect of the tax year in which the Closing shall occur. Seller shall not take any action to apply for the reduction or review of the assessed valuation of the Real Property and Improvements (a “ Tax Proceeding ”) under the Financial Agreement, for the fiscal

 

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year in which Closing occurs, it being understood and agreed that the pending settlement discussions relating to the pending audit of the Financial Agreement are expressly excluded herefrom and after the Effective Date through the Closing, Seller, AFE and the Subsidiaries (to the extent applicable) shall not enter into a settlement agreement with respect to the pending audit of the Financial Agreement without Purchaser’s prior consent (not to be unreasonably withheld, conditioned or delayed); provided, however, Seller, AFE and the Subsidiaries may enter a settlement agreement with respect to the pending audit of the Financial Agreement at any time without Purchaser’s prior consent if (i) Schwab consents to the terms of such settlement agreement, (ii) Schwab agrees to be liable for any payments thereunder, (iii) Seller has provided prior notice thereof to Purchaser and (iv) the material terms of such settlement agreement are limited to: agreement to increase annual PILOT payments up to $150,000.00 starting in Jersey City’s current fiscal year with a one-time additional payment up to $150,000.00 on account of past due amounts claimed by the City of Jersey City, New Jersey and such settlement agreement releases all parties to the Financial Agreement and the Contracting Agreement from the claims covered by such settlement agreement.

8.2 Prorations for Tenant-Paid Operating Expenses . To the extent tenants are required to pay operating costs and expenses of the Real Property or Improvements (“ Operating Expenses ”) directly under their respective Leases, which Operating Expenses may include, without limitation, fees and assessments; prepaid expenses; obligations under Service Contracts; any assessments by private covenant; insurance; utilities; common area maintenance expenses; and other operating costs and expenses incurred in connection with the ownership, operation, maintenance and management of the Real Property, Operating Expenses will not be prorated, and accordingly, Purchaser shall look solely to the tenants under such Leases for payment of all Operating Expenses.

8.3 Prorations for Non-Tenant Paid Items . To the extent tenants are not required to pay Operating Expenses or Taxes directly under their respective Leases, but are required to escrow Operating Expenses or Taxes under their respective Leases and/or to reimburse their landlord for all or any portion of such Operating Expenses or Taxes, then the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by AFE and the Subsidiaries for Purchaser’s account from and after (and including) the Closing Date and Seller’s account prior to the Closing Date:

8.3.1 Utilities . Purchaser shall take all steps necessary to post deposits with the utility companies on behalf of AFE and the Subsidiaries for the period after the Closing Date. Seller shall ensure that all utility meters are read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company on behalf of AFE and the Subsidiaries as of the Closing Date.

 

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8.3.2 Tenant Receivables . Rents due from tenants under Leases and from tenants or licensees under License Agreements and Operating Expenses and Taxes payable by tenants under Leases and licenses under License Agreements (collectively, “ Tenant Receivables ”) and not collected by AFE, PXR, PXURA or PXLA as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the basis of the period for which the same is payable and if, as and when collected, as follows:

(a) Tenant Receivables and other income received from tenants under Leases, and/or tenants or licensees under License Agreements after Closing shall be applied in the following order of priority: (1) first, to payment of the current Tenant Receivables then due for the month in which the Closing Date occurs, which amount shall be apportioned between Purchaser and Seller as of the Closing Date as set forth in Section 8.3 hereof (with Seller’s portion thereof to be delivered to Seller); (2) second, to payment of Tenant Receivables first coming due after Closing but applicable to the period of time before Closing, (collectively, “ Unbilled Tenant Receivables ”), which amount shall be delivered to Seller; (3) third, to Tenant Receivables first coming due after Closing and applicable to the period of time after Closing, which amount shall be retained by AFE and the Subsidiaries; and (4) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by AFE and the Subsidiaries as of Closing (collectively, “ Uncollected Delinquent Tenant Receivables ”), which amount shall be delivered to Seller. Notwithstanding the foregoing, Seller shall have the right to pursue on behalf of AFE and the Subsidiaries the collection of Uncollected Delinquent Tenant Receivables for a period of six (6) months after Closing without prejudice to Seller’s rights or Purchaser’s obligations hereunder, provided, however, Seller shall have no right to cause AFE and the Subsidiaries to cause any such tenant or licensee to be evicted or to exercise any other “landlord” remedy (as set forth in such tenant’s Lease or licensee’s License Agreement) against such tenant other than to sue for collection. Any sums received by AFE and the Subsidiaries to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to AFE and the Subsidiaries, and Purchaser shall remit to Seller any such sums received by AFE or the Subsidiaries to which Seller is entitled within ten (10) Business Days after receipt thereof less reasonable, actual costs and expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period from and after the Closing Date, Seller shall hold the same in trust for AFE and the Subsidiaries and remit to Purchaser that portion of the monies so received by Seller to which AFE or the Subsidiaries is entitled within ten Business Days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and agrees to cause AFE and the Subsidiaries to (A) bill the same when billable and (B) cooperate with Seller to determine the correct amount of operating expenses and/or taxes due. Seller shall provide Purchaser with the necessary information to bill the same when billable and cooperate with Purchaser to maximize collection of the Unbilled Tenant Receivables. The provisions of this Section 8.3.2(a) shall survive the Closing.

(b) Purchaser acknowledges that AFE, PXURA and PXLA, as the landlords under the Leases (and/or as the licensors under the License Agreements) may be collecting from tenants under the Leases (and/or licensees under the License Agreements) additional rent relating to Operating Expenses or Taxes. To the extent that any such additional rent is paid by any tenants to the landlord under the Leases (and/or by any licensees to the licensor under the License Agreements) based on an estimated payment basis (whether monthly, quarterly, or otherwise) for which a future reconciliation of actual Operating Expenses or Taxes to estimated payments of Operating Expenses or Taxes is required to be performed at the end of a reconciliation period, Purchaser and Seller shall determine prior to the Closing whether such tenants and/or licensees have, in

 

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the aggregate, made an overpayment or underpayment of additional rent relating to Operating Expenses or Taxes (such determination to be based on a comparison of reasonable estimates of actual annual Operating Expenses and Taxes to the estimated payments being made by such tenants and/or licensees). If such determination indicates that such tenants and/or licensees have made an overpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall receive a credit toward the Purchase Price in the amount of such overpayment and AFE and the Subsidiaries shall retain all obligations and liabilities relating to such overpayment. If, however, such determination indicates that such tenants and/or licensees have made an underpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall cause AFE or the Subsidiaries to bill the tenants for the same promptly after the Closing and remit the same to Seller as and when collected. If such review indicates that it cannot be determined as of the Closing Date whether a tenant has overpaid or underpaid its additional rent relating to Operating Expenses or Taxes, Purchaser shall cause AFE or the Subsidiaries to bill the tenant for the same at the end of the reconciliation period, and any overpayment with respect to the period prior to the Closing Date shall be paid by Seller to Purchaser or any underpayment with respect to the period prior to the Closing Date, when received from the tenant, shall be paid by Purchaser to Seller. Notwithstanding anything contained herein to the contrary, to the extent Purchaser, Seller, AFE, PXR, PXURA or PXLA receives a check or wire transfer from any tenant in the exact amount of the item payable by such tenant or referencing the item to which the check or wire transfer relates, such check or wire transfer shall be (i) applied directly to the applicable item or (ii) if such item was previously paid by AFE or the Subsidiaries during Seller’s Ownership Period, reimbursed to Seller, or if such item was paid by AFE or the Subsidiaries thereafter, reimbursed to Purchaser.

8.4 Miscellaneous Prorations . Without duplication of, and to the extent not addressed by Sections 8.1, 8.2 and 8.3, all other items that are customarily subject to proration and adjustment, including without limitation, “Base Rent”, shall be prorated as of the Closing Date, it being agreed that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Membership Interests on the Closing Date.

8.5 Leasing Costs . Seller agrees to cause AFE and the Subsidiaries pay or discharge at or prior to Closing (and provide Purchaser with evidence of payment thereof), or provide Purchaser with a credit at Closing in the amount of, all leasing commissions, costs for tenant improvements, lease buyout costs, moving allowances, design allowances, legal fees and other costs, expenses and allowances incurred in order to induce a tenant to enter into a Lease or Lease renewal or extension or to induce a licensee to enter into a License Agreement (collectively, the “ Leasing Costs ”) that are indicated on Schedule 9.1.5 as being payable by Seller. Purchaser agrees to cause AFE and the Subsidiaries to pay all Leasing Costs indicated on Schedule 9.1.5 as being payable by Purchaser as and when they become due. Seller shall have no obligation to pay, and as of Closing AFE and the Subsidiaries shall retain, the obligation to pay, all Leasing Costs payable with respect to any option to renew or option to expand that has not been exercised prior to the Effective Date, which obligation shall survive the Closing. Additionally, as of Closing, AFE and the Subsidiaries shall retain all obligations for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

 

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8.6 Closing Costs . Closing costs shall be allocated between Seller and Purchaser in accordance with Section 1.2.

8.7 Final Adjustment After Closing . If final bills are not available or cannot be issued prior to Closing for any item being prorated under Sections 8.1, 8.3 and 8.5, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice. All such rights and obligations shall survive the Closing.

8.8 Tenant Deposits . All tenant and licensee security deposits collected and not applied by AFE, PXR, PXURA or PXLA (and interest thereon if required by law or contract) as of the Closing Date shall be retained by AFE, PXR, PXURA or PXLA at Closing. As of the Closing, AFE, PXR, PXURA and PXLA shall retain their obligations related to tenant and licensee security deposits, but only to the extent the security deposits are retained by AFE, PXR, PXURA and PXLA at Closing. Notwithstanding the foregoing provisions of this Section 8.8, deposits in the form of letters of credit will not be transferred or credited at the Closing. All letters of credit will remain in the name of AFE, PXR, PXURA and PXLA at Closing. Purchaser and Seller shall each pay one-half (1/2) of the costs and expenses, if any, of delivering the letters of credit to Purchaser. In the event that prior to a transfer of any such letter of credit to Purchaser, Purchaser deems it advisable to cause AFE, PXR, PXURA or PXLA to draw on the same, Seller will cooperate in such presentation, and direct payment by virtue of any such presentation to AFE, PXR, PXURA or PXLA, and if Seller receives any such payment it will promptly deliver such payment in the form received and endorsed, without recourse, to Purchaser on behalf of AFE, PXR, PXURA or PXLA. Purchaser shall defend, indemnify and hold Seller harmless from all claims, causes of actions, actions, damages, costs, liabilities and expenses, including (without limitation) reasonable attorneys’ fees, that may arise out of any such presentation or related payment, other than by reason of any actions of Seller other than at the written direction of Purchaser. If any security deposit is held in a form other than cash or a letter of credit, for example, debt or equity securities, at Closing, such debt or equity securities shall continue to be held by AFE or the applicable Subsidiary.

8.9 Commissions . Seller is responsible to Financial Advisor for a real estate fee at Closing in accordance with a separate agreement between Seller and Financial Advisor and at Closing Seller shall pay to Financial Advisor the entire real estate fee due under the separate agreement between Seller and Financial Advisor. Financial Advisor may share its commission with any other financial advisor or licensed broker involved in this transaction. Subject to Seller’s representations in this Section 8.9, under no circumstances shall Seller owe a commission or other compensation directly to any financial advisor, broker, agent or person other than Financial Advisor. No affiliate, subsidiary or party related in any way to Purchaser shall claim a commission or fee from Seller or Financial Advisor. Seller represents and warrants to Purchaser that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby other than Financial Advisor, and agrees to and does hereby indemnify and hold Purchaser harmless against the payment of

 

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any commission or real estate fee to any other person or entity claiming by, through or under Seller including Financial Advisor. Purchaser represents and warrants to Seller that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby, and agrees to and does hereby indemnify and hold Seller harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Purchaser excluding Financial Advisor. The foregoing indemnifications shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.

8.10 Accounts . At or prior to Closing, Seller shall cause all then existing accounts in the name of AFE or any Subsidiary, to be closed and the proceeds therein distributed to Seller.

ARTICLE 9

REPRESENTATIONS AND WARRANTIES

9.1 Seller’s Representations and Warranties . Each Seller represents and warrants to Purchaser that:

9.1.1 Organization and Authority . Seller, AFE, PXR, PXURA and PXLA are validly existing, and in good standing in the states in which they were was formed. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause AFE and the Subsidiaries to consummate the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller, AFE, PXR, PXURA and PXLA at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller, AFE and the Subsidiaries, enforceable in accordance with their terms.

9.1.2 No Conflicts . The execution, delivery and performance by Seller, AFE and the Subsidiaries, as applicable, of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Seller, AFE, PXR, PXURA, PXLA, the Membership Interests or any portion of the Real Property or Improvements is bound.

9.1.3 Consents; Binding Obligations . No approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Seller, AFE or the Subsidiaries, as applicable, to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller or the Subsidiaries, as applicable, to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller or the Subsidiaries, as applicable, are and shall be valid, legally binding obligations of and enforceable against Seller and the Subsidiaries in accordance with their terms.

 

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9.1.4 Pending Actions . Except as set forth on Schedule 9.1.4 , there is no action or proceeding pending or to Seller’s knowledge threatened, against Seller, AFE or the Subsidiaries (as applicable) including, but not limited to, those relating to the Membership Interests, the AFE LLC Agreement, the Subsidiary LLC Agreements, the Mack-Cali Management Agreement, the Real Property, the Improvements, the Leases and Guaranties, the Tangible Personal Property or the Intangible Personal Property.

9.1.5 Leases, Guaranties, Tenants and Guarantors . Schedule 1.1.21 is a true, correct and complete list of all Leases, Guaranties, tenants and guarantors in effect as of the Effective Date. Seller has delivered, or has caused AFE and the Subsidiaries to deliver, or has made available to Purchaser true, correct and complete copies of the Leases and the Guaranties. To Seller’s knowledge, no tenant or guarantor of any Lease has been released or discharged, voluntarily or involuntarily, or by operation of law, from any obligation related to such Lease. To Seller’s knowledge, Seller, AFE, PXR, PXURA and PXLA have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Leases or Guaranties, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller, AFE, PXR, PXURA and PXLA have not received any notice from any tenant or guarantor under the Guaranties asserting any presently accrued defenses, offsets or disputes thereunder. The Rent Roll is true and correct in all material respects. Except as disclosed on Schedule 9.1.5 , there are no Leasing Costs or other obligations to brokers due or which will become due under any of the Leases, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement. Except as disclosed on Schedule 9.1.5 , all Leasing Costs have been fully paid and satisfied by Seller, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

9.1.6 Service Contracts and License Agreements . To Seller’s knowledge, Schedule 9.1.6 is a true, correct and complete list of all Service Contracts and License Agreements with respect to the Real Property and Improvements. To Seller’s knowledge, Seller has delivered or caused AFE and the Subsidiaries to deliver true, correct and complete copies of the Service Contracts and License Agreements to Purchaser. To Seller’s knowledge, Seller, AFE, PXR, PXURA and PXLA have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Service Contracts or License Agreements, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller, AFE, PXR, PXURA and PXLA have not received any notice from any party under the Service Contracts or License Agreements asserting any presently accrued defenses, offsets or disputes thereunder.

9.1.7 Notices from Governmental Authorities . To Seller’s knowledge, except as set forth on Schedule 9.1.7 or as may be reflected by the Property Documents or otherwise disclosed by Seller to Purchaser in writing, Seller, AFE, PXR, PXURA and PXLA have not received from any governmental authority during the Seller’s Ownership Period written notice of any violation of any laws, that has not been corrected. To Seller’s knowledge, except as set forth

 

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on Schedule 9.1.7 , neither Seller nor any of the Subsidiaries has received from any governmental authority, including without limitation, Jersey City or the Jersey City Redevelopment Authority, notice of any violations of the Financial Agreement or any notice of alleged non-compliance or disputes regarding any provision of the Financial Agreement.

9.1.8 Prohibited Persons and Transactions . Neither Seller nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.1.9 Operating Statements . The Operating Statements delivered by Seller or made available to Purchaser are true and complete copies of the operating statements for the Real Property and Improvements which Seller, AFE, PXR, PXURA and PXLA rely upon for the purposes of operating the Real Property and Improvements.

9.1.10 Insurance . Schedule 9.1.10 is a true, correct and complete list of the insurance maintained by Seller, AFE, PXR, PXURA and PXLA with respect to the Real Property and Improvements. Seller, AFE, PXR, PXURA and PXLA have not received any written notice or request from any insurance company requesting the performance of any work or alteration with respect to the Real Property or Improvements, which have not been fully and completely corrected. Seller, AFE, PXR, PXURA and PXLA have not received written notice from any insurance company concerning any defects or inadequacies in the Real Property or Improvements, which, if not corrected, would result in the termination of insurance coverage or increase its cost.

9.1.11 Employees . There are no employees of Seller, AFE, PXR, PXURA or PXLA employed in connection with the use, management, maintenance or operation of the Real Property and Improvements whose employment will continue after the Closing Date. There is no bargaining unit or union contract relating to any employees of Seller, AFE, PXR, PXURA or PXLA.

9.1.12 Third Party Agreements . Other than the Leases, the License Agreements, the Service Contracts, the Permitted Exceptions and the agreements set forth on Schedule 9.1.12 , there are no agreements to which Seller, AFE or any Subsidiary is party to. To Seller’s knowledge, except as set forth on Schedule 9.1.12 , Seller is not in default of, and no other party is in default of, any of its obligations under any of the agreements set forth on Schedule 9.1.12 , and there is no event which, with the giving of notice or passage of time, or both, would be a default thereunder.

9.1.13 Seller’s Representatives . Seller’s Representatives are the individuals involved in supervising Seller’s, AFE’s, PXR’s, PXURA’s and PXLA’s ownership, operation, and maintenance of the Real Property and Improvements, have knowledge of the operation and maintenance of the Real Property and Improvements and have reviewed the representations of Seller set forth in, and the schedules and exhibits referenced in, this Section 9.1.13.

 

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9.1.14 Ownership . (A) Seller is the sole member of, and owns one hundred percent (100%) of the interests in, AFE, (B) AFE is the sole member of, and owns one hundred percent (100%) of the interests in, PXR, (C) PXR is the sole member of, and owns one hundred percent (100%) of the interests in, PXURA, (D) PXR is the sole member of, and owns one hundred percent (100%) of the interests, in PXLA and (E) AFE, via its sole membership in, and one hundred percent (100%) ownership of, PXR, indirectly owns all of PXURA and PXLA. Except for (i) the liens, encumbrances, liabilities, claims, covenants and restrictions relating to that portion of the GE Loan secured by the Real Property and Improvements, which will either be repaid or assumed by Purchaser at Closing, and (ii) that certain Option Agreement by and between Second Street Holdings, L.L.C., a New Jersey limited liability company, and Seller, dated as of September 29, 2003 (the “ Second Street Option ”), (i) Seller owns its interests in AFE free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same and Seller has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interests or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such interests, (ii) AFE owns its interests in PXR free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same and AFE has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interests or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such interests and (iii) PXR owns its interests in PXURA and PXLA free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same, and PXR has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interest or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such interest.

9.1.15 PILOT Matters . Seller has delivered to Purchaser a true, accurate and complete copy of the Financial Agreement. To Seller’s knowledge, the Financial Agreement is in full force and effect. Except as set forth on Schedule 9.1.15 , PXURA has made all payments required to be paid to date under the Financial Agreement and filed all annual audited financial statements in connection therewith required to be filed to date. Except as set forth on Schedule 9.1.15 , neither Seller, AFE, PXR, PXURA or PXLA has received any written notice that it has failed to pay or perform any obligation on its part to be paid or performed under the Financial Agreement (which remains uncured) or that it is in default (which remains uncured) under the Financial Agreement. Except as set forth on Schedule 9.1.15 , as of the date hereof, there is no litigation or proceedings pending or, to Seller’s knowledge, threatened in writing with respect to the Financial Agreement.

 

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9.1.16 Subleases . Schedule 9.1.16 is a true, correct and complete list of all subleases (at whatever level) covering the Real Property or Improvements acknowledged by, or consented to, AFE, PXR, PXURA or PXLA and such additional subleases as to which Seller, AFE, PXR, PXURA, or PXLA (as applicable) have knowledge of.

9.1.17 LLC Agreements . Seller has delivered to Purchaser a true, complete and accurate copies of the AFE LLC Agreement and the Subsidiary LLC Agreements, and all amendments thereto, all of which are each in full force and effect and have not been amended or modified, and there has been no material default by Seller, AFE or the Subsidiaries under the AFE LLC Agreement and the Subsidiary LLC Agreements (as applicable) during Seller’s Ownership Period.

9.1.18 Subsidiaries . Other than AFE and the Subsidiaries, there are no corporations, partnerships, joint ventures, associations or other entities in which Seller owns, of record or beneficially, any direct or indirect equity or other interest or any right to acquire same.

9.1.19 Books and Records . The Books and Records contain accurate records of all meetings and accurately reflect all other actions taken by the members, boards of directors and all committees of AFE and the Subsidiaries. Complete and accurate copies of all Books and Records of AFE and the Subsidiaries have been provided by Seller to the Purchaser

9.1.20 Bankruptcy . No petition in bankruptcy (voluntary or, to Seller’s knowledge, involuntary), assignment for the benefit of creditors or petition seeking reorganization or arrangement or other action under federal or state bankruptcy or insolvency laws is pending against or, to Seller’s knowledge, threatened against AFE or any of the Subsidiaries.

9.1.21 Permitted Liabilities . AFE and the Subsidiaries have no liabilities other than (i) those reflected on the consolidated balance sheet of each respective entity, dated as of March 31, 2010 (collectively, the “ Balance Sheets ”) and (ii) liabilities incurred in the ordinary course of AFE’s and the Subsidiaries’ business related to the Real Property or Improvements from April 1, 2010 through the Effective Date, which ordinary course liabilities (A) shall not materially exceed the corresponding line items for such ordinary course liabilities set forth in the Balance Sheets except for accrued tax liabilities in an amount not to exceed $135,000.00 for the month of April, 2010 and (B) are subject to Purchaser’s consent rights otherwise contained in this Agreement (items (i) and (ii) of this Section 9.1.21 are referred to herein collectively as, the “ Permitted Liabilities ”), which Permitted Liabilities shall be paid prior to or at Closing except for (x) Permitted Liabilities prorated in accordance with the terms of this Agreement and (y) if Purchaser acquires the Membership Interests with the GE Bridge Loan, those Permitted Liabilities relating to the GE Loan.

9.1.22 Financial Statements . Seller has delivered to Purchaser true, correct and complete copies of the Financial Statements. The Financial Statements present fairly in all material respects the financial position, results of operations and cash flows of AFE and the Subsidiaries as of the dates thereof and for the periods covered thereby, in accordance with GAAP applied on a consistent basis.

 

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9.1.23 Taxes and Tax Returns .

(1) AFE and each of the Subsidiaries has filed all federal, state and local tax returns that are due for each year of its existence. AFE and each of the Subsidiaries has paid or caused to be paid all Taxes required to be paid by AFE and each of the Subsidiaries through the date hereof whether disputed or not.

(2) There are no pending or, to the best knowledge of the Seller after due inquiry, threatened actions for the assessment or collection of Taxes against AFE or any Subsidiary or (insofar as either relates to the activities or income of AFE or any Subsidiary or could result in liability of AFE or any Subsidiary on the basis of joint and/or several liability) any person that was included in the filing of a Tax Return with the Seller on a consolidated, combined or unitary basis and there are no Tax liens on any assets of AFE or any Subsidiary.

(3) Schedule 9.1.23(3) lists all income, franchise and similar tax returns (federal, state, local and foreign) and disclosures or certifications filed, including those required under the Financial Agreement, with respect to each of AFE and the Subsidiaries for taxable or reporting periods ended on or after Seller’s Ownership Period, (B) indicates the most recent income, franchise or similar tax return for each relevant jurisdiction for which an audit has been completed or the statute of limitations has lapsed and (C) indicates all tax returns or certifications or disclosures filed, including those required under the Financial Agreement, that currently are the subject of audit; and

(4) Seller has delivered to Purchaser correct and complete copies of all federal, state and foreign income, franchise and similar tax returns, examination reports and statements of deficiencies assessed against or agreed to by AFE or any Subsidiary during Seller’s Ownership Period and (iii) Seller has delivered to Purchaser a true and complete copy of any tax sharing or allocation agreement or arrangement involving AFE or any Subsidiary and a true and complete description of any such unwritten or informal agreement or arrangement.

9.1.24 Undisclosed Liabilities . There is no basis for any present action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against AFE or any of the Subsidiaries (as applicable) giving rise to any liability, except for (i) liabilities set forth on the Financial Statements and (ii) the Permitted Liabilities.

9.1.25 Collective Bargaining and Employee Plans . Neither Seller, AFE nor any of the Subsidiaries is a party to any collective bargaining or similar agreement with respect to the Real Property or Improvements. As of the date hereof, there are no employee benefit plans or arrangements with respect to AFE or the Subsidiaries.

9.1.26 Second Street Option . The Second Street Option is still in full force and effect. Neither Seller, AFE nor any of the Subsidiaries has received any notice under the Second Street Option purporting to exercise any right thereunder. To Seller’s knowledge, no dispute or claim exists between the parties to the Second Street Option.

 

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9.2 Purchaser’s Representations and Warranties . Purchaser represents and warrants to Seller that:

9.2.1 Organization and Authority . Purchaser is validly existing as a limited liability company in good standing in the State of Delaware. Subject to obtaining approval of Purchaser’s Board of Directors prior to Purchaser’s delivery of the Due Diligence Waiver Notice to Seller pursuant to Section 4.3.1 hereof, (a) Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby, and (b) this Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2 No Conflicts . The execution, delivery and performance by Purchaser of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Purchaser is bound.

9.2.3 Consents; Binding Obligations . Except as set forth in Section 9.2.1, (a) no approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Purchaser to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Purchaser to consummate the transaction contemplated hereby, and (b) this Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms.

9.2.4 Pending Actions . There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.2.5 ERISA . (a) Purchaser is neither (i) an “employee benefit plan” (as defined in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended (“ ERISA ”)) which is subject to Title I of ERISA (an “ ERISA Plan ”), nor (ii) a “plan” (as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) which is subject to Section 4975 of the Code (a “ Code Plan ”); (b) the assets of Purchaser do not constitute “plan assets” (as defined in Section 3(42) of ERISA) of one or more ERISA Plans or Code Plans (“ Plan Assets ”) because, at the time of the Closing, the stock of Purchaser’s parent constitutes “publicly offered securities” (as defined in 29 C.F.R. Section 2510.3-101(b)(2)), which parent owns one hundred percent (100%) of the issued and outstanding equity of Purchaser; (c) Purchaser is not using Plan Assets in the performance or discharge of its obligations under this Agreement; (d) Purchaser is not a “governmental plan” (within the meaning of Section 3(32) of ERISA) and assets of Purchaser do not constitute plan assets of one or more such plans; and (e) transactions by or with Purchaser are not in violation of state statutes applicable to Purchaser regulating investments of and fiduciary obligations with respect to governmental plans.

 

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9.2.6 Prohibited Persons and Transactions . Neither Purchaser nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.2.7 Availability of Funds . Subject to obtaining the financing contemplated by either (x) the Term Financing Commitment, (y) the GE Bridge Loan and the Mezzanine Loan or (z) the Bridge Loan and the Mezzanine Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.

9.3 Survival of Representations and Warranties . The representations and warranties set forth in this ARTICLE 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean the actual knowledge of the following persons: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, Carrie Crain, Vice President and persons whose names are set forth on Schedule 9.3 (the foregoing persons are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do not have but could have obtained through further investigation or inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Portfolio

 

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Purchase and Sale Agreement) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate) equals or exceeds (i) $2,000,000 if such breach relates to the Real Property, the Improvements and the Membership Interests, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $2,000,000 and for all such damage above $2,000,000 with respect to the Real Property, the Improvements and the Membership Interests or (ii) $5,000,000 for the Real Property, the Improvements, the Membership Interests and the Portfolio Property, in which event Seller shall be liable (without duplication of any claims made pursuant to subclause (i) of this clause (3)) to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to the Property, the Membership Interests and the Portfolio Property, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement, any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 and other than Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of Portfolio Seller pursuant to Section 9.3 of the Portfolio Purchase and Sale Agreement will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Membership Interests and the Portfolio Property and (b) there shall be no threshold or limitation or limitation on survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by ARTICLE 10.

9.4 Company Representations . Anything in this Agreement to the contrary notwithstanding, including Section 9.3, (i) there shall be no cap or floor on liability and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement and such subsections shall survive the Closing without limitation: Sections 9.1.1, 9.1.2, 9.1.3, 9.1.4, 9.1.14, 9.1.17, 9.1.18, 9.1.20, 9.1.22 and 9.1.23, (ii) there shall be no cap or floor on liability and the Survival Period shall be two (2) years from Closing and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement: Sections 9.1.15, 9.1.19, 9.1.21 and 9.1.24, and (iii) the Survival Period for Section 9.1.12 shall be two (2) years from Closing and remain subject to the caps, floors, and sharing of liability as set forth in Section 9.3 (items (i), (ii) and (iii) of this Section 9.4 are referred to herein collectively as, the “ Company Representations ”), subject to the applicable statues of limitation. Seller and

 

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iStar (“ Indemnitor ”) shall each indemnify Purchaser and hold Purchaser harmless from and against, any and all claims, liabilities, damages, losses, costs or expenses (including reasonable attorneys’ fees) incurred by Purchaser arising from the Company Representations. This Section 9.4 shall survive the Closing.

ARTICLE 10

DEFAULT AND REMEDIES

10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder or under the Portfolio Purchase and Sale Agreement at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Portfolio Purchase and Sale Agreement, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Portfolio Purchase and Sale Agreement and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Membership Interests hereunder or the Portfolio Property pursuant to the Portfolio Purchase and Sale Agreement), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Membership Interests, the Real Property or the Improvements that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Membership Interests, the Real Property or the Improvements. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS, THE REAL PROPERTY OR THE IMPROVEMENTS, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Portfolio Seller defaults in its obligations under the Portfolio Purchase and Sale Agreement at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Portfolio Purchase and Sale Agreement, Portfolio Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Portfolio Purchase and Sale Agreement and the first Sentence of Section 9.3 hereof

 

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and of the Portfolio Purchase and Sale Agreement), and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Membership Interests hereunder or Portfolio Seller fails to consummate the sale of the Portfolio Property under the Portfolio Purchase and Sale Agreement), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, in which event Seller shall be liable to Purchaser for its out of pocket expenses incurred in connection with the transaction contemplated hereby, but not to exceed $300,000.00, (b) enforce specific performance to consummate the sale of the Membership Interests hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE MEZZANINE LOAN AND SECTION 9.4, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS, THE REAL PROPERTY OR THE IMPROVEMENTS, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3 Attorneys’ Fees . In the event either party hereto employs an attorney in connection with claims by one party against the other arising from the operation of this Agreement, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in connection with such claims.

10.4 Other Expenses . If this Agreement is terminated due to the default of a party, then the defaulting party shall pay any fees or charges due to Escrow Agent for holding the Earnest Money as well as any escrow cancellation fees or charges and any fees or charges due to the Title Company for preparation and/or cancellation of the Title Commitment.

ARTICLE 11

DISCLAIMERS, RELEASE AND INDEMNITY

11.1 Disclaimers By Seller . Except as expressly set forth in this Agreement and/or the Closing documents, it is understood and agreed that Seller, AFE, PXR, PXURA and PXLA and Seller’s, AFE’s, PXR’s, PXURA’s and PXLA’s agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Membership Interests, the Real Property and Improvements, including, but not limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Real Property, the

 

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Improvements or any portion thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Real Property or Improvements, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Real Property, the Improvements or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Real Property, the Improvements or any portion thereof may be subject, (i) the availability of any utilities to the Real Property, the Improvements or any portion thereof, including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Real Property, the Improvements or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Real Property, the Improvements or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Real Property, the Improvements or any part thereof, (m) the condition or use of the Real Property, the Improvements or compliance of the Real Property or the Improvements with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Real Property or the Improvements, (p) the potential for further development of the Real Property or the Improvements, (q) the merchantability of the Real Property or the Improvements or fitness of the Real Property or the Improvements for any particular purpose, (r) the truth, accuracy or completeness of the Property Documents or Updated Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Real Property or the Improvements.

11.2 Sale “As Is, Where Is” . Purchaser acknowledges and agrees that upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept the Membership Interests and all beneficial interests arising therefrom “ AS IS, WHERE IS, WITH ALL FAULTS ,” except to the extent expressly provided otherwise in this Agreement and any document executed by Seller and delivered to Purchaser at Closing. Except as expressly set forth in this Agreement or such Closing documents, Purchaser has not relied and will not rely on, and Seller has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Membership Interests, the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller, or any property manager, real estate broker, financial advisor, agent or third party representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Purchaser represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Membership Interests and shall make an independent verification of the accuracy of any documents and information provided by Seller. Purchaser will conduct such inspections and investigations of the Membership Interests and the

 

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Property as Purchaser deems necessary, including, but not limited to, the physical and environmental conditions of the Property, and shall rely upon same. By failing to terminate this Agreement prior to the expiration of the Inspection Period, Purchaser acknowledges that Seller has afforded Purchaser a full opportunity to conduct such investigations of the Membership Interests and the Property as Purchaser deemed necessary to satisfy itself as to the Membership Interests and the condition of the Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser hereby represents and warrants to Seller that: (a) Purchaser is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Purchaser is purchasing the Membership Interests for business, commercial, investment or other similar purpose. Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Seller.

11.3 Seller Released from Liability . Purchaser acknowledges that it will have the opportunity to inspect the Real Property and Improvements during the Inspection Period, and during such period, observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Real Property, Improvements and adjacent areas as Purchaser deems necessary, and, except as set forth herein or in any Closing document, Purchaser hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Real Property and Improvements, arising after the Effective Date, and liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“ CERCLA ”), regarding the condition, valuation, salability or utility of the Real Property, the Improvements or their suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Real Property or Improvements under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Real Property or Improvements). Except as set forth herein or in any closing documents, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Real Property or Improvements are or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Real Property or Improvements, including, without limitation, the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Real Property or Improvements, arising after the

 

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Effective Date. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Real Property and Improvements and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

11.4 “ Hazardous Materials” Defined . For purposes hereof, “ Hazardous Materials ” means “Hazardous Material,” “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any other substances regulated because of their effect or potential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, and infectious materials.

11.5 Intentionally Deleted .

11.6 Survival . The terms and conditions of this ARTICLE 11 shall expressly survive the Closing, and shall not merge with the provisions of any closing documents.

Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Seller would not have agreed to sell the Membership Interests to Purchaser for the Purchase Price without the disclaimers and other agreements set forth above.

ARTICLE 12

MISCELLANEOUS

12.1 Parties Bound; Assignment . This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto. Purchaser may, at Purchaser’s sole cost and expense and at no cost or expense to Seller, assign its rights under this Agreement upon the following conditions: (a) the assignee of Purchaser must be (i) an entity controlling, controlled by, or under common control with Purchaser or (ii) an entity advised by an affiliate of Purchaser’s advisor, Dividend Capital Total Advisors LLC, (b) all of the Earnest Money must have been delivered in accordance herewith, (c) the Inspection Period shall have (or be deemed to have) ended, (d) the assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser shall remain primarily liable for the performance of Purchaser’s obligations, (e) a copy of the fully executed written assignment and assumption agreement shall be delivered to Seller at least five (5) Business Days prior to Closing, (f) the requirements in Section 12.17 are satisfied and (g) such assignment shall in no event delay the Closing.

12.2 Headings . The article, section, subsection, paragraph and/or other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.

12.3 Invalidity and Waiver . If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to

 

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the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.

12.4 Governing Law . This Agreement shall be governed in all respects, including validity, construction, interpretation and effect, by the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Each of Purchaser and Seller hereby (i) irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State, City and County of New York for the purpose of any action or proceeding arising out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a New York state court or federal court located in the State, City and County of New York. Each of Purchaser and Seller hereby consents to and grants any such court jurisdiction over the person of such party and over the subject matter of any such dispute and agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 12.10, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof on such party.

12.5 Survival . The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing (other than any unfulfilled closing conditions which have been waived or deemed waived by the other party) shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

12.6 Entirety and Amendments . This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Membership Interests, the Real Property or the Improvements, except that letter of intent dated April 2, 2010 between iStar, on behalf of Seller, and Purchaser shall survive the execution of this Agreement to the extent of the exclusivity obligations and covenants under such letter. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.

12.7 Time . Time is of the essence in the performance of this Agreement.

12.8 Intentionally Omitted .

12.9 No Electronic Transactions . The parties hereby acknowledge and agree this Agreement shall not be executed, entered into, altered, amended or modified by electronic means. Without limiting the generality of the foregoing, the parties hereby agree the transactions contemplated by this Agreement shall not be conducted by electronic means, except as specifically set forth in the “Notices” section of this Agreement.

 

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12.10 Notices . All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.3. Any such notices shall, unless otherwise provided herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified and addressed to the party to be notified, with return receipt requested, (b) by overnight delivery using a nationally recognized overnight courier, (c) by personal delivery, or (d) by Portable Document Format (PDF) so long as a copy thereof is also sent by one of the other delivery methods set forth in Sections 12.10(a), (b) or (c). Notice given in accordance herewith for all permitted forms of notice other than by electronic mail, shall be effective upon the earlier to occur of actual delivery to the address of the addressee or refusal of receipt by the addressee. In no event shall this Agreement be altered, amended or modified by electronic mail or electronic record. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Notices given by counsel to the Purchaser shall be deemed given by Purchaser and notices given by counsel to the Seller shall be deemed given by Seller.

12.11 Construction . The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

12.12 Calculation of Time Periods; Business Day . Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at midnight local time in New York, New York. As used herein, the term “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday for national banks in the City of New York, New York or Colorado.

12.13 Execution in Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.

12.14 Recordation . Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent of Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall have the remedies set forth in Section 10.1 hereof. In addition to any such remedies, Purchaser shall be obligated to execute an instrument in recordable form releasing this Agreement or memorandum or affidavit, and Purchaser’s obligations pursuant to this Section 12.14 shall survive any termination of this Agreement as a surviving obligation.

 

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12.15 Further Assurances . In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the transfer of the Membership Interests to Purchaser.

12.16 Discharge of Obligations . The acceptance of the Assignment and Assumption of Membership Interests by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive Closing.

12.17 ERISA . Under no circumstances shall Purchaser have the right to assign this Agreement to any person or entity owned or controlled by an “employee benefit plan” (as defined in Section 3(3) of ERISA) if Seller’s sale of the Membership Interests to such person or entity would, in the reasonable opinion of Seller’s ERISA advisors or consultants, create or otherwise cause a “prohibited transaction” under ERISA or any other applicable law with an effect similar to that of Section 406 of ERISA including, but not limited to, Section 4975 of the Code (each such law, a “ Similar Law ”). In the event Purchaser assigns this Agreement or transfers any ownership interest in Purchaser, and such assignment or transfer would make the consummation of the transaction hereunder a “prohibited transaction” under ERISA or any Similar Law and would therefore either (a) necessitate the termination of this Agreement, or (b) cause Seller to incur liability under ERISA or such Similar Law if the transaction were consummated, then, in either case, notwithstanding any contrary provision which may be contained herein, Seller shall have the right to terminate this Agreement and Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof. Anything in this Section 12.17 to the contrary notwithstanding, Seller shall have no right to terminate this Agreement under this Section 12.17 if Purchaser’s assignee expressly reaffirms in a writing addressed to Seller the representation in Section 9.2.5.

12.18 No Third Party Beneficiary . The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing, except that a tenant of the Real Property or Improvements may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

12.19 Reporting Person . Purchaser and Seller hereby designate First American as the “reporting person” pursuant to the provisions of Section 6045(e) of the Internal Revenue Code of 1986, as amended.

12.20 Post-Closing Access . From and after the Closing, the Purchaser will, at Seller’s sole cost and expense, permit Seller and Seller’s agents and representatives access (and will permit copying of materials pertaining to the period prior to the Closing), during business hours from time to time, to the Lease Files and other Real Property-related information upon reasonable advance notice to the Purchaser. This Section 12.20 shall survive the Closing.

 

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12.21 Waiver of Jury Trial . SELLER AND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN SELLER AND PURCHASER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

12.22 Information and Audit Cooperation . Within 75 days after the Closing Date, Seller, at Purchaser’s sole cost and expense and at no cost or expense to Seller, shall allow Purchaser’s auditors access to the books and records of Seller relating to the operation of the Real Property and Improvements for the three (3) year period prior to the Closing Date to enable Purchaser to comply with any financial reporting requirements applicable to Purchaser, upon at least three (3) Business Days prior written notice to Seller. In addition, Seller shall provide Purchaser’s designated independent auditors a representation letter regarding the books and records of the Real Property and Improvements in substantially the form attached hereto as Exhibit H .

12.23 Bulk Sales Laws .

12.23.1 Seller shall indemnify, defend and hold Purchaser harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature that arise out of the failure of Seller to comply with the requirements of NJSA 54:50-38 et. seq.

12.23.2 This Section 12.23 shall survive the Closing.

[SIGNATURE PAGES, SCHEDULES AND EXHIBITS TO FOLLOW]

 

-51-


SIGNATURE PAGE TO AGREEMENT OF

PURCHASE AND SALE

BY AND BETWEEN

iSTAR HARBORSIDE LLC,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below.

PURCHASER :

 

TRT ACQUISITIONS LLC , a Delaware limited liability company
By:       DCTRT Real Estate Holdco LLC, Its Sole Member
  By:       Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:       Dividend Capital Total Realty Trust Inc., Its General Partner
      By:  

/s/ GREG MORAN

      Name:  

Greg Moran

      Title:  

SVP

      Date:   May 3, 2010

SELLER :

 

iSTAR HARBORSIDE LLC , a Delaware limited liability company
By:       iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
  By:  

/s/ SAMANTHA GARBUS

  Name:  

Samantha Garbus

  Title:  

Senior Vice President

  Date:   May 3, 2010

MEMBER INTEREST PURCHASE AND SALE AGREEMENT


AGREED TO FOR PURPOSES OF SECTION 4.3.2 AND 9.4:

 

iSTAR FINANCIAL INC. , a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date:   May 3, 2010

MEMBER INTEREST PURCHASE AND SALE AGREEMENT


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited under this Agreement and the interest earned thereto, in escrow, and shall disburse the Earnest Money, and the interest earned thereon, pursuant to the provisions of this Agreement.

 

FIRST AMERICAN TITLE INSURANCE

COMPANY

By:  

 

Name:  

 

Title:  

 

Date:  

 


LIST OF SCHEDULES

 

Schedule 1.1.1       INTENTIONALLY DELETED
Schedule 1.1.3       INTENTIONALLY DELETED
Schedule 1.1.21       List of Leases, Guaranties, Tenants and Guarantors
Schedule 1.1.22       List of Excluded Personal Property
Schedule 1.2       Transfer Tax Responsibility
Schedule 4.3.2       INTENTIONALLY DELETED
Schedule 6.1.4       Security Deposits
Schedule 6.4.2       Third Parties
Schedule 6.5       INTENTIONALLY DELETED
Schedule 9.1.4       Pending Actions
Schedule 9.1.5       Leasing Costs
Schedule 9.1.6       Service Contracts and License Agreements
Schedule 9.1.7       Notices from Governmental Authorities
Schedule 9.1.10       Insurance Coverages
Schedule 9.1.12       Third Party Agreements
Schedule 9.1.15       PILOT Matters
Schedule 9.1.16       Subleases
Schedule 9.1.21       INTENTIONALLY DELETED
Schedule 9.1.23(3)       Filed Tax Returns, Disclosures and Certificates
Schedule 9.3       Seller’s Representatives

LIST OF EXHIBITS

 

Exhibit A       Legal Description of Land
Exhibit B       Form of Assignment and Assumption of Membership Interests
Exhibit C       INTENTIONALLY DELETED
Exhibit D       Form of FIRPTA Certificate
Exhibit E       INTENTIONALLY DELETED
Exhibit F       INTENTIONALLY DELETED
Exhibit G       Notice to Schwab
Exhibit H       Form of Audit Letter
Exhibit I       INTENTIONALLY DELETED


SCHEDULE 1.1.1

INTENTIONALLY DELETED

 

Schedule 1.1.1 - 1


SCHEDULE 1.1.3

INTENTIONALLY DELETED

 

Schedule 1.1.3 - 1


SCHEDULE 1.1.21

LIST OF LEASES, GUARANTIES, TENANTS AND GUARANTORS

Property : Charles Schwab & Co., Inc. / Harborside Financial Center Plaza, Jersey City, NJ

Tenant : Charles Schwab & Co., Inc.

Amended and Restated Lease dated as of December 29, 2000 between Plaza X Leasing Associates L.L.C., as landlord, and Charles Schwab & Co., Inc., as tenant, as affected by that certain Amended and Restated Memorandum of Lease dated as of December 29, 2000, as affected by that certain Amended and Restated Memorandum of Right of First Offer dated as of December 29, 2000, as affected by that certain Letter re: Confirmation of Right of First Offer Agreement with Charles Schwab & Co., Inc. dated December 29, 2000, as affected by that certain Letter re: Plaza 10, SCO 30 dated December 14, 2001, as amended by that certain Amendment to Lease (Possession Date Agreement) dated as of February 4, 2002, as amended by that certain Amendment to Lease (Secondary Premises Possession Date Agreement) dated as of March 1, 2002, as amended by that certain Amendment to Lease (Mezzanine Space Possession Date Agreement) dated as of March 1, 2002, as amended by that certain Amendment to Lease (Miscellaneous Date Agreement) dated as of August      , 2002, as amended by that certain Amendment to Lease (Space Swap Agreement) dated as of April 1, 2003, as amended by that certain Amendment to Lease dated as of April 1, 2003, as amended by that certain Amendment to Lease dated as of September 29, 2003, as affected by that certain Letter re: Plaza X dated September 29, 2003, as affected by that certain Memorandum of Amendment to Lease dated September 29, 2003, as affected by that certain Termination of Right of First Offer Agreement dated September 29, 2003, as affected by that certain Memorandum of Termination of Right of First Offer Agreement dated September 29, 2003, as affected by that certain Release of Rights Under Expansion Agreement (Plaza I – III) dated as of September 29, 2003, as affected by that certain Release of Rights Under Expansion Agreement (Plaza IV – VII) dated as of September 29, 2003, as affected by that certain Termination of Guaranties dated September 29, 2003, as affected by that certain Escrow Agreement dated as of September 29, 2003, as affected by that certain Letter re: Amended and Restated Lease dated December 8, 2005, as affected by that certain Letter re: Change of Notice Address dated November 18, 2009 (collectively, the “ Schwab Lease ”).

Lease dated as of October 6, 2000 between American Financial Exchange, L.L.C. and Plaza X Urban Renewal Associates, L.L.C., as amended by that certain First Amendment to Ground Lease dated as of September 29, 2003, as affected by that certain Memorandum of Ground Lease dated as of September 29, 2003.

Lease dated as of October 6, 2000 between Plaza X Urban Renewal Associates, L.L.C. and Plaza X Leasing Associates, L.L.C., as amended by that certain First Amendment to Lease dated as of September 29, 2003.

 

Schedule 1.1.21 - 1


Request for Sublease Consent/Confirmation Letters

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Qualifying Sublease dated October 14, 2004 (Master Sublease with First States Investors Realty, LLC).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated June 30, 2006 (Master Sublease with First States Investors Realty, LLC)

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated October 15, 2004 (Bank of Montreal).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated February 15, 2006 (Citco Fund Services (USA), Inc.).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated October 2, 2007 (Citco Fund Services (USA), Inc.).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated October 2, 2007 (Itelagen, LLC).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated June 30, 2006 (The Northern Trust Company of New York).

Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated March 22, 2007 (Perr & Knight, Inc.).

Letter from First States Investors Realty, LLC to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated July 14, 2005 (The Lab Companies, Inc.).

Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated              , 2003 (Unigestion US, Ltd.).

Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated March 25, 2002 (The Fuji Bank, Limited).

Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated January 16, 2002 (Instinet Group Incorporated).

 

Schedule 1.1.21 - 2


Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term – No Landlord Consent Required, Request for Consent to Alterations dated December 28, 2009 (Princeton Information Ltd.).

Non-Disturbance and Attornment Agreements*

Non-Disturbance and Attornment Agreement dated as of October 14, 2004 between First States Investors Realty, LLC, Charles Schwab & Co., Inc. and Plaza X Leasing Associates L.L.C.

Non-Disturbance and Attornment Agreement dated as of October 15, 2004 between Bank of Montreal and Plaza X Leasing Associates L.L.C.

Non-Disturbance and Attornment Agreement dated as of February 15, 2006 between Citco Fund Services (USA), Inc. and Plaza X Leasing Associates L.L.C. and consented to by First States Investors Realty, LLC, as affected by that certain First Amendment to Non-Disturbance and Attornment Agreement dated as of September      , 2007.

Non-Disturbance and Attornment Agreement dated as of July 18, 2006 between The Northern Trust Company of New York and Plaza X Leasing Associates L.L.C.

Non-Disturbance and Attornment Agreement dated as of September 26, 2003 between Mizuho Corporate Bank, Ltd. (f/k/a The Fuji Bank, Limited), Charles Schwab & Co., Inc. and Plaza X Leasing Associates L.L.C.

Non-Disturbance and Attornment Agreement dated as of September 29, 2003 between Instinet Services, L.L.C., Charles Schwab & Co., Inc. and Plaza X Leasing Associates, L.L.C.

Non-Disturbance and Attornment Agreement dated as of October 23, 2007 between IPC Systems, Inc. and Plaza X Leasing Associates L.L.C.

*Pursuant to each Non-Disturbance and Attornment Agreement, the applicable sublease set forth on Schedule 9.1.16 shall become a direct lease between Plaza X Leasing Associates and such tenant upon the expiration or earlier termination of the Schwab Lease.

 

Schedule 1.1.21 - 3


SCHEDULE 1.1.22

LIST OF EXCLUDED PERSONAL PROPERTY

Wells Fargo – The Copy Shop

1 Copier – Studio 350

1 Fax Machine – Studio 170F

Pitney Bowes

1 Postage Meter Machine

Welco

8 Assorted Tank rentals – torch used for brazing & refrigeration work

Culligan

2 Water coolers – (Penthouse & lunch Room) area

Champion Uniform

Uniform cleaning & rental for Engineers (shirts and pants for 6 Engineers)

Keurig Coffee Machines

1 Coffee Machine Mgmt. Office

Computer

2 Flat Screen Monitors

2 Computers

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 1.1.22 - 1


SCHEDULE 1.2

TRANSFER TAX RESPONSIBILITY

 

Transfer Taxes

Responsible Party Payment Summary

      

PROPERTY ADDRESS / NAME

   Alt
Name
   City    State    County    State
Transfer
Tax
   County
Transfer
Tax
   City
Transfer
Tax
  Doc
Stamp
Tax
  Mortgage
Tax
   Harborside Plaza X    Schwab    Jersey
City
   NJ    Hudson    Seller    NA    Seller

(pilot

program)

  Buyer (1)   NA

 

Schedule 1.2 - 1


SCHEDULE 4.3.2

INTENTIONALLY DELETED

 

Schedule 4.3.2 - 1


SCHEDULE 6.1.4

SECURITY DEPOSITS

iStar Financial Inc.

Letter of Credit and Security Deposit Tracking Sheet for Schwab Subtenants

As of April 30, 2010

 

                         Letters of Credit   

Security Deposits

    

Project

ID

  

Lease

ID

  

Tenant

  

Lease

Expiration

  

Type of

Security

   LC  Amt. (1)   

Start/End
Dates

  

Renewal
Type

  

Current
Status

  

Current
Copy in
Files

  

Type

   Amount (1)   

COMMENTS

PHAR

BOR01

  

LCITC

FU01

  

Citco Fund Services (USA)

(sublease with Schwab)

   12/31/2021    LOC    $ 2,500,000    1/1/06 - 1/31/11    Auto    Current    Yes          Citco is a subtenant of Schwab and has a direct lease with iStar that commences 10/1/17. The LOC shall be reduced as follows: 1/1/08 - $3,500,000; 1/1/09 - $3,000,000; 1/1/10 - $2,500,000; and 1/1/11 - $2,225,000. Transferred to Plaza X. Subject to triParty letter agreement dated 2-15-06.

PHAR

BOR01

  

LCITC

FU01

  

Citco Fund Services (USA)

(sublease with Schwab)

   12/31/2021    LOC    $ 586,929    11/2/07 - 11/30/10    Auto    Current    Yes          Citco is a subtenant of Schwab and has a direct lease with iStar that commences 10/1/17. The LOC shall be reduced as follows: 1/1/08 - $821,701; 1/1/09 - $704,315; 1/1/10 - $586,929; and 1/1/11 - $469,543. Subject to tri-party letter agreement dated 10-10-07.
               $ 3,086,929    Total Letters of Credit             $ 0    Total Security Deposits

 

Schedule 6.1.4 - 1


iStar Financial Inc.

LOC & Security Deposit Tracking Sheet for Schwab Subtenants

As of April 30, 2010

 

Applicant:    Citco Fund Services (USA), Inc.    Citco Fund Services (USA), Inc.
Beneficiary:    First States Investors Realty, LLC    First States Investors Realty, LLC
Amount:    $2,500,000    $586,929
Assignee:    N/A    N/A
Issuer:    JP Morgan Chase Bank    JP Morgan Chase Bank
LOC Number:    TUTS-239237    TUTS-340972
Date of last amendment:    N/A    N/A
Commencement:    5/22/2006    11/2/2007
Initial Expiration:    1/31/2007    11/30/2008
Current Expiration:    1/31/2011    11/30/2010
Automatic extension clause:    Yes    Yes
LOC Term:    1 year    1 year
To be in effect through:    12/31/2021    12/31/2021
Issuer Cancellation Option:    60 days notice by bank    60 days notice by bank
Custody of Original LOC:    New York office    New York office
Specific Purpose:    Security Deposit    Security Deposit
Comments:    Citco is a subtenant of Schwab and has a direct lease with iStar that commences 10/1/17. The LOC shall be reduced as follows: 1/1/08 - $3,500,000; 1/1/09 - $3,000,000; 1/1/10 - $2,500,000; and 1/1/11 - $2,225,000.    Citco is a subtenant of Schwab and has a direct lease with iStar that commences 10/1/17. The LOC shall be reduced as follows: 1/1/08 - $821,701; 1/1/09 - $704,315; 1/1/10 - $586,929; and 1/1/11 - $469,543.

 

Schedule 6.1.4 - 2


SCHEDULE 6.4.2

THIRD PARTIES

 

1. First States Investors Realty, LLC

 

2. Plaza VIII & IX Associates, L.L.C.

 

Schedule 6.4.2 - 1


SCHEDULE 6.5

INTENTIONALLY DELETED

 

Schedule 6.5 - 1


SCHEDULE 9.1.4

PENDING ACTIONS

 

Claimant

  

Location

   Date of
Loss
  

Description of
Incident

   Reserve
Amount
  

Status

Julia Barrios

   Harborside Plaza    2/7/2005    Slip & fall on snow and ice    $ 10,000    Law suit - motion filed for summary judgment

Alma Notidis

   Harborside Plaza    4/27/2009    fell down a flight of stairs while exiting building      unknown    May be filed under claimant’s workers compensation

Lisa Manning

   Harborside Plaza    3/13/2010    slip & fall in lobby, wet floor      unknown    Claim will be tendered to Collins Building Services who was applying sealer to the floor

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.4 - 1


SCHEDULE 9.1.5

LEASING COSTS

 

Tenant

  

Address

  

Commission Agreement Notes

   Due at
Effective Date
(of PSA)
  

Party
Responsible
for Payment
(Seller or
Purchaser)

Bank of Montreal (Schwab)    Harborside Plaza, Jersey City, NJ    Lease contemplates commission due upon renewal    $ 0    Purchaser
Northern Trust (Schwab)    Harborside Plaza, Jersey City, NJ    Commission due upon renewal in accordance with separate Agreement    $ 0    Purchaser

Schwab

   Harborside Plaza, Jersey City, NJ   

Citco: A) CBRE- Commission Agreement 7/9/07. If Subtenant exercises renewal/extension/expansion option. If fair market value is determined to be greater than $33 psf on 9/30/2017 than an additional commission may be due.

B) Jones Lang LaSalle- Brokerage Agreement 7/6/07. Due at renewal, extention & assignments

IPC: Grubb & Ellis- Commission Agreement 8/15/07. Due at renewal/extension/addition.

   $ 0    Purchaser

 

Schedule 9.1.5 - 1


SCHEDULE 9.1.6

SERVICE CONTRACTS AND LICENSE AGREEMENTS

 

Type of Service

  Vendor   Contact   Phone   Address   Frequency
HARBORSIDE PLAZA (SCHWAB)
Uniform
Cleaning for
Engineers
  Champion
Uniform
  Gil Santos   (800) 294-2468   20 Douglas
Street Fords,
New Jersey
08863-2299
  Monthly
Cleaning Service   Collins Bldg
Services
  George Lewis   (212) 896-5100   24-01 44th
Rd., 15th Fl.
Long Island
City, N.Y.
11101
  Monthly
Window Washing
Maint
  Collins Bldg
Services
  George Lewis   (212) 896-5100   24-01 44th
Rd., 15th Fl.
Long Island
City, N.Y.
11101
  Monthly
Improve Waste
Management &
Recycling
Expenses
  Corporate
Services
Consultant
  Melody Chafin   (614) 778-3780   1215 Polaris
Parkway
PMB 183
Columbus,
OH 43240
  Annually
Generator Maint   Eaton Corp.
PowerWare
  Brian Fletcher   (919) 870-3211   8609 Six
Forks Road,
Raleigh,
North
Carolina
27615
  Annually
Pest Elimination   Ecolab   Richard Mancuso   1-800-325-1671   P.O. Box
6007 Grand
Forks, ND
58206-6007
  Monthly
Elevator Maint   Fujitec   Tom Donnelly   (973) 330-0100   215 Entin
Road

Clifton, N.J.
07014

  Monthly
Generator Maint   Genserve,
Inc
  Christopher Lyons   (631) 435-0437   80
Sweeneydale
Ave Bay
Shore, NY
11706
  Annually
Generator Maint   Genserve,
Inc
  Christopher Lyons   (631) 435-0437   80
Sweeneydale
Ave Bay
Shore, NY
11706
  3- QTR.
Bldg Electric   Hess
Corporation
  Customer Serv.
Dept.,
  1-800-437-7235   1 Hess
Plaza,
Woodbridge,
NJ 07095
  Monthly
Water Treatment   Industrial
Water Tech
  Richard DeMartino   (732) 888-1233   6 Village
Court

Hazlet, New
Jersey 07730

  QTR.

 

Schedule 9.1.6 - 1


Temporary License & Access Agreement   Jersey City Bistro - space on the ground floor of the Building for a temporary, moveable foodcart/kiosk   Michael Deluca   (201) 413-

9775

 

45 Continental Avenue

Belleville, New Jersey 07109

  Monthly
Fuel Oil Maintenance   ISP Automation   Mary Cartwright or Darlene Borgen   (732) 951-

9510 or (732)
951-9540

  1035 Old Georges Road North Brunswick, N.J. 08902   QTR.
Bldg Maint   Larkin Service Corp.   Jack Larkin   (973) 535-

0909

  81 Dorsa Ave., Livingston, N.J. 07039   Annually
Test & Inspect. Wet Sprinkler Riser   Meadowlands Fire Protection   Tim Manning   (201) 610-

0580

  348 New County Road, Secaucus, N.J. 07094   Annually
Landscaping (includes 3 ext planters)   Nielsen-Elefante   James Elefante   (973) 535-

0909

  660 West Pine Brook Road Lincoln Park, N.J. 07035   Monthly
Service Lobby Plants   Nielsen-Elefante   James Elefante   (973) 535-

0909

  660 West Pine Brook Road Lincoln Park, N.J. 07035   Monthly
Radio Maintenance   Pinnacle Wireless   Chris Bohnert   (800) 214-

6642

  80 Commerce Way, Hackensack, N.J. 07601   Monthly

Postage Maching Rental/Postage

DHL not included

  Pitney Bowes   Address to: Inside Sales   (877) 887-

6833

  PO Box 856460 Louisville, KY 40285-6460   4-X QTR.
Revolving/Bal Door Maintenance   Plumb Door   Bobby Magaraci   (212) 414-

4830 24hrs.
(646-852-
3402

  506 Canal Street, First Floor New York, N.Y. 10013   2-X YR.
WeatherStripping PR Rev Door   Plumb Door   Bobby Magaraci   (212) 414-
4830 24hrs.
(646-852-
3402
  506 Canal Street, First Floor New York, N.Y. 10013   Annually
Fire Drills/Consulting   Quality Fire Protection   Thomas McMaster   (212) 695-
0890
  14 Penn Plaza, Ste. 2202 a/ka 225 West 34th Street, New York NY 10122-0049   Monthly
Bldg System Maint   Siemens Bldg Tech   Laura Hummel   (973) 575-
6300
  19 Chapin Road, Bldg. B-200 P.O. Box 704, Pine Brook, NJ 07088   4 X QTR.

 

Schedule 9.1.6 - 2


Bldg System Maint   Siemens Bldg Tech   Laura Hummel   (973) 575-6300   19 Chapin Road, Bldg. B-200 P.O. Box 704, Pine Brook, NJ 07088   4 X QTR.
Electric Metering Cost   SourceOne   Guiseppe Giammo   1-212-612-7600   7 Penn Plaza, New York, NJ 10001   Monthly
Bldg Security   Spartan Security Serv. Inc   Guy Navarro   (212) 251-7888   One Park Avenue, New York New York 10016   Annually
Platform Maint   Spider   Christian Dombrowski   (718) 349-0700   58-54 59th Street, Maspeth, N.Y. 11378-3226   4-X QTR.
Metal Maint   Stuart Dean   Kevin Cullen   (718) 472-1326   43-50 10th Street, Long Island City, New York 11101   Monthly
DSX Access & CCTV System   System Design Association   Brian J. Jones   (973) 812-9797   300 Lackawanna Avenue, Suite 004, West Paterson, N.J. 07424   2 X PR.
Life Safety   Systems Sales Corporation   Steve Ginter   (732) 751-0600   1345 Campus Parkway Neptune, N.J. 07753-6815   4-X QTR.
Life Safety   Systems Sales Corporation   Steve Ginter   (732) 751-0600   1345 Campus Parkway Neptune, N.J. 07753-6815   Annually
Window Cleaning   Valcourt   Christopher Duffy   (703) 294-6202   1621 N. Kent Street, Suite 1101, Arlington, VA 22209   2X QTR.
Trash Pick Up   Veolia Environmental Services   Andrew Connella   (973) 812-7100   Center Court, Ste. C Totowa, NJ 07512  
Copier and Fax Machine Rental   Wells Fargo   Customer Serv. Dept.,   (866) 497-6661   P.O. Box 6434 Carol Stream, IL 60197-6434   Monthly

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.6 - 3


SCHEDULE 9.1.7

NOTICES FROM GOVERNMENTAL AUTHORITIES

Letter re: Cal Harbor/Plaza – Audit of Total Project Costs dated January 12, 2009 from City of Jersey City to Richard L. Rudin, Esq.

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.7 - 1


SCHEDULE 9.1.10

INSURANCE COVERAGES

 

    City/State   P-Code   Primary
or
Contingent
Property
Insurance
  Part of
landlord
insurance
reimbursed by
tenant
Schwab (Charles Schwab & Co)   Jersey City,
NJ
  PHARBOR01   Primary   base year

 

COVERAGE

  

LIMIT OF
LIABILITY

  

DEDUCTIBLE

  

CARRIER

  

REMARKS

COMMERCIAL PROPERTY-REAL & PERSONAL; Replacement Cost Coverage, No Co-Insurance (Agreed Amount); Special Form, Business Income including loss of rents, Actual Loss Sustained.

  

$400,000,000

Blanket Limit

Each Occurrence

  

$25,000

Each Occurrence

   Various carriers on a layered program with Lexington and Liberty Mutual in the lead    Insuring against all direct physical loss or damage subject to policy exclusions, including but not limited to buildings, foundations, incomplete additions, builders’ risk, permanently installed fixtures, machinery and equipment, personal property, and EDP. Terrorism is included; vacant properties are included. War is excluded. Annual term. Includes all locations - primary and contingent.

BOILER & MACHINERY

  

Blanket Loss Limit

$100,000,000

Each Occurrence

  

$25,000

24 hours

   Lexington Insurance    Electrical injury or arcing; Mechanical Breakdown and Steam Boiler Explosion are included. Includes $50M extra expense sublimit.

MORTGAGE IMPAIRMENT

   $200,000,000    $25,000    Various carriers on a layered program with Lexington and Liberty Mutual in the lead    For amounts greater than provided by debtor; if debtor’s insurance is uncollectible; or, if debtor failed to provide specific insurance. Includes sub-limit of $5M flood (except in A zone), $10M earthquake (except CA, AK, HI, PR, New Madrid & Puget Sound); $100M named windstorm

NAMED WINDSTORM

Tier I

  

Blanket Loss Limit

$200,000,000

Each Occurrence

   5% of the value per location subject to a minimum of $100,000    Various carriers on a layered program with Lexington and Liberty Mutual in the lead    Tier I includes the State of Florida and coastal areas of Alabama, Georgia, Mississippi, South Carolina, Virginia, Louisiana, North Carolina and Texas.

WINDSTORM

All Other Locations

  

Blanket Loss Limit

$400,000,000

Each Occurrence

  

$25,000

Each Occurrence

   Various carriers on a layered program with Lexington and Liberty Mutual in the lead    No sub-limit applies to Tier I if storm is not named

 

Schedule 9.1.10 - 1


FLOOD

(Zones A and V)

  

$25,000,000

Annual Aggregate

   $500,000    Various carriers on a layered program with Lexington and Liberty Mutual in the lead    Sub-limit only applies to six named locations in SFHA zone A.

DEDUCTIBLE FLOOD

NFIP

  

$500,000

Each Policy

  

1,000

Each Occurrence

   Fidelity National Insurance Co.    Individual policies covering flood on several properties in Zone A up to $500,000 per building. Coverage is reinsured by the Federal Government Flood Program. LMG flood is excess of NFIP.

FLOOD

(all other locations)

  

$100,000,000

Each Occurrence /

Annual Aggregate

  

$50,000

Each Occurrence

  

Liberty Mutual

and

Lexington Insurance

   Waves, surface or rising waters, tidal water, the release of water, rising, overflowing or breaking of boundaries of natural or man-made bodies of water, whether driven by wind or not.

EARTH MOVEMENT

  

$100,000,000

Each Occurrence /

Annual Aggregate

  

$50,000

Each Occurrence

   Various carriers on a layered program with Lexington and Liberty Mutual in the lead    5% deductible in high hazard locations of CA, AK, New Madrid area or Puerto Rico; 2% in HI and Pacific Northwest. (specific states or counties named)

COMMERCIAL GENERAL LIABILITY

Occurrence

Form

  

$1,000,000 Each Occurrence /

$2,000,000 General Aggregate Per Location /

$20,000,000 Policy Aggregate

   none    Zurich American   

Products-Comp/Ops Aggregate - $2,000,000;

Personal & Advertising Injury Limit - $1,000,000;

Fire, Lighting or Explosion Legal Liab. - $1,000,000;

Medical Expense $5,000.

BUSINESS AUTO

   $1,000,000 Combined Bodily Injury and Property Damage - Each Accident    none    Zurich American    Owned, hired, and non-owned auto coverage; comprehensive and collision with $1,000 deductible; and $30,000 hired car physical damage with a $500 deductible.

ENVIRONMENTAL

LIABILITY

  

$5,000,000

Each Occurrence /

$10,000,000

Aggregate

  

$100,000

Each Occurrence

   American International Specialty Lines Insurance Company    Commercial Real Estate Pollution Legal Liability (NAREIT sponsored form) on all owned property. Five year term and policy aggregate. Includes on-site and off-site clean up of new and pre-existing conditions.

COMMERCIAL UMBRELLA

Occurrence form

  

$200,000,000

Each Occurrence / Annual Aggregate

      Layered Program:    Includes true umbrella form, right and duty to defend, pay on behalf of wording, drop-down coverage for
   $25,000,000    Retained limit $10,000    Zurich American   

exhausted or reduced primary aggregate limits,

worldwide coverage. Annual term.

  

$25,000,000

Excess of $25,000,000

      Great American    Major exclusions include asbestos, pollution (except hostile fire), care custody and control,

 

Schedule 9.1.10 - 2


 

$50,000,000

Excess of $50,000,000

    American Insurance Co.   Major exclusions include asbestos, pollution (except hostile fire), care custody and control,
 

$25,000,000

Excess of $100,000,000

    North River   employment practices, nuclear energy, ERISA.
 

$25,000,000

Excess of $125,000,000

    Federal  
 

$25,000,000

Excess of $150,000,000

    Ohio Casualty  
 

$25,000,000

Excess of $175,000,000

    St. Paul / Travelers  

 

Schedule 9.1.10 - 3


SCHEDULE 9.1.12

THIRD PARTY AGREEMENTS

1. Financial Agreement, together with all exhibit and schedules annexed thereto, dated as of November 15, 2000 between Plaza X Urban Renewal Associates L.L.C. and the City of Jersey City, as amended by that certain Addendum to Financial Agreement, dated as of November 15, 2000 as further amended by that certain Amendment to Financial Agreement, effective as of September 23, 2003, subject to Sections 8.1.3, 9.1.7 and 9.1.15 of the Member Interest Purchase and Sale Agreement to which this Schedule 9.1.12 is attached and all schedules referenced in such sections.

2. Project Employment and Contracting Agreement between the City of Jersey City and Plaza X Urban Renewal Associates L.L.C. dated November 15, 2000.

3. Property Management Agreement dated September 29, 2003 between Plaza X Leasing Associates, L.L.C. Owner and Mack-Cali Realty, L.P. Manager.

4. Cross-Reciprocal Easement Agreement dated September 29, 2003 between and among American Financial Exchange L.L. C., Plaza VIII & IX Associates, L.L.C. and CALI Harborside (Fee) Associates L.P.

5. Option Agreement dated September 29, 2003 by and between Second Street Holdings L.L.C. and iStar Harborside LLC.

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.12 - 1


SCHEDULE 9.1.15

PILOT MATTERS

1. Project Employment and Contracting Agreement between the City of Jersey City and Plaza X Urban Renewal Associates L.L.C. dated November 15, 2000.

2. Letter re: Cal Harbor/Plaza – Audit of Total Project Costs dated January 12, 2009 from City of Jersey City to Richard L. Rudin, Esq.

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.15 - 1


SCHEDULE 9.1.16

SUBLEASES

Property : Charles Schwab & Co., Inc. / Harborside Financial Center Plaza, Jersey City, NJ

Tenant : Charles Schwab & Co., Inc.

Master Sublease dated as of June 24, 2004 between Charles Schwab & Co., Inc. and First States Investors Realty, LLC, as affected by that certain Master Sublease Administration Agreement dated as of June 24, 2004, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Qualifying Sublease dated October 14, 2004, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated June 30, 2006, as amended by that certain First Amendment to Master Sublease dated as of December 15, 2007, as amended by that certain Second Amendment to Master Sublease dated as of December 16, 2008, as amended by that certain Third Amendment to Master Sublease dated as of February 25, 2009, as amended by that certain Fourth Amendment to Master Sublease dated as of March 22, 2009, as amended by that certain Fifth Amendment to Master Sublease dated as of March 31, 2009, as amended by that certain Sixth Amendment to Master Sublease dated as               , 2010, as affected by that certain Non-Disturbance and Attornment Agreement dated as of October 14, 2004 between First States Investors Realty, LLC, Charles Schwab & Co., Inc. and Plaza X Leasing Associates L.L.C.

Lease Agreement dated as of February 1, 2005 between First States Investors Realty, LLC and First States Management Corp., LLC.

Sublease dated March 24, 2006 between First States Investors Realty, LLC and Advanced Business Process, Inc.

Sublease dated as of November 5, 2007 between First States Investors Realty, LLC and Avepoint, Inc.

Sublease dated as of November 10, 2005 between First States Investors Realty, LLC and Baird, Patrick & Company Inc.

Sublease Between First States Investors Realty, LLC, Sublandlord and Bank of Montreal, Subtenant dated as of August 13, 2004 between First States Investors Realty, LLC and Bank of Montreal, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated October 15, 2004, as affected by that certain Non-Disturbance and Attornment Agreement dated as of October 15, 2004 between Bank of Montreal and Plaza X Leasing Associates L.L.C.

 

Schedule 9.1.16 - 1


Sublease dated as of December 30, 2005 between First States Investors Realty, LLC and Citco Fund Services (USA), Inc., as amended by that certain First Amendment to Sublease Agreement dated as of February 15, 2006, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated February 15, 2006, as amended by that certain Second Amendment to Sublease Agreement dated as of March 31, 2006, as amended by that certain Third Amendment to Sublease Agreement dated as of April      , 2006, as amended by that certain Fourth Amendment to Sublease Agreement dated as of June 28, 2007, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated October 2, 2007, as affected by that certain Non-Disturbance and Attornment Agreement dated as of February 15, 2006 between Citco Fund Services (USA), Inc. and Plaza X Leasing Associates L.L.C. and consented to by First States Investors Realty, LLC, as affected by that certain First Amendment to Non-Disturbance and Attornment Agreement dated as of September      , 2007.

Sublease dated as of March 31, 2005 between First States Investors Realty, LLC and Contrarian Services Corp., as amended by that certain First Amendment to Sublease Agreement dated as of October 31, 2005.

Sublease dated as of May 7, 2007 between First States Investors Realty, LLC and Humana Insurance Company of New York.

Sublease dated as of August 24, 2005 between First States Investors Realty, LLC and Instinet Group Incorporated.

Sublease dated as of August 17, 1007 between First States Investors Realty, LLC and Itelagen, LLC, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated October 2, 2007.

Sublease dated as of September 24, 2004 between First States Investors Realty, LLC and John J. Curley, LLC.

Sublease dated as of June 30, 2005 between First States Investors Realty, LLC and Lime Brokerage LLC, as amended by that certain First Amendment to Sublease Agreement dated as of November 30, 2005, as amended by that certain Second Amendment to Sublease Agreement dated as of December 5, 2007.

Sublease dated as of August 21, 2006 between First States Investors Realty, LLC and Lux Biosciences, Inc.

Sublease dated as of February 8, 2005 between First States Investors Realty, LLC and Margulies, Wind & Herrington, P.A.

 

Schedule 9.1.16 - 2


Sublease dated as of May 5, 2006 between First States Investors Realty, LLC and The Northern Trust Company of New York, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Consent – Sublease Beyond the Term, Request for Consent – Qualifying Sublease dated June 30, 2006, as amended by that certain First Amendment to Sublease dated as of September 22, 2006, as affected by that certain Non-Disturbance and Attornment Agreement dated as of July 18, 2006 between The Northern Trust Company of New York and Plaza X Leasing Associates L.L.C., as affected by that certain Non-Disturbance and Attornment Agreement dated as of July 18, 2006 between The Northern Trust Company of New York and Charles Schwab & Co., Inc.

Sublease dated as of November 18, 2004 between First States Investors Realty, LLC and Panepinto Properties, Inc.

Sublease dated as of January 31, 2007 between First States Investors Realty, LLC and Perr & Knight, Inc., as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated March 22, 2007.

Sub-Sublease dated as of March 18, 2008 between Perr & Knight, Inc. and Avepoint, Inc., as affected by that certain Consent to Sub-Sub-Sublease dated as of May 29, 2008 between First States Investors Realty, LLC, Perr & Knight, Inc. and Avepoint, Inc.

Sublease Between First States Investors Realty, LLC, Sublandlord and Quasar Group, LLC, Subtenant dated as of August 27, 2004 between First States Investors Realty, LLC and Quasar Group, LLC.

Sublease dated as of June 28, 2005 between First States Investors Realty, LLC and The Lab Companies, Inc., as affected by that certain Letter from First States Investors Realty, LLC to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term dated July 14, 2005.

Sublease dated as of July 22, 2009 between First States Investors Harborside, LLC and Tower Research Capital LLC.

Sublease dated as of August 4, 2009 between First States Investors Harborside, LLC and Libertyview Capital Management, LLC.

Sublease dated as of March 30, 2009 between First States Investors Harborside, LLC and Core Education & Consulting Solutions Inc.

Sublease dated as of May 20, 2009 between First States Investors Harborside, LLC and ISHI Systems, Inc.

Sublease dated February 8, 2010 between First States Investors Harborside, LLC and Jersey City Bistro, LLC.

 

Schedule 9.1.16 - 3


Sublease dated as of March 26, 2010 between First States Investors Harborside, LLC and Intrasphere Technologies, Inc., as amended by that certain First Amendment to Sublease dated as of April 29, 2010.

Sublease Between Charles Schwab & Co., Inc., Sublandlord and Unigestion US, Ltd., Subtenant dated as of August 19, 2003 between Charles Schwab & Co., Inc. and Unigestion US, Ltd., as affected by that certain Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated               , 2003.

Sublease Between Charles Schwab & Co., Inc., Sublandlord and Welgrow International, Inc., Subtenant dated as of September 12, 2003 between Charles Schwab & Co., Inc. and Welgrow International, Inc.

Sublease Between Charles Schwab & Co., Inc., Sublandlord and Petrochina International (America) Inc., Subtenant dated as of February 26, 2004 between Charles Schwab & Co., Inc. and Petrochina International (America) Inc., as amended by that certain First Amendment to Sublease dated as of November 25, 2008.

Sublease Between Charles Schwab & Co., Inc., Sublandlord and The Fuji Bank, Limited, Subtenant dated as of March 1, 2002 between Charles Schwab & Co., Inc. and The Fuji Bank, Limited, as affected by that certain Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated March 25, 2002, as affected by that certain Letter re: Sublease dated April 30, 2002, as affected by that certain Non-Disturbance and Attornment Agreement dated as of September 26, 2003 between Mizuho Corporate Bank, Ltd. (f/k/a The Fuji Bank, Limited), Charles Schwab & Co., Inc. and Plaza X Leasing Associates L.L.C.

Sublease Between Charles Schwab & Co., Inc., Sublandlord, and Instinet Group Incorporated, Subtenant dated as of December 18, 2001 between Charles Schwab & Co., Inc. and Instinet Group Incorporated, as affected by that certain Letter from Plaza X Leasing Associates L.L.C. re: Amended and Restated Lease dated January 16, 2002, as affected by that certain Non-Disturbance and Attornment Agreement dated as of September 29, 2003 between Instinet Services, L.L.C., Charles Schwab & Co., Inc. and Plaza X Leasing Associates, L.L.C.

Sublease dated as of December 7, 2007 between Instinet Group, LLC and Capitol Records, Inc., as affected by that certain Letter from Charles Schwab & Co., Inc. to Instinet Group, LLC re: Sublease dated January 15, 2008.

Sublease dated as of August 21, 2007 between Instinet Group, LLC and IPC Systems, Inc., as affected by that certain Non-Disturbance and Attornment Agreement dated as of October 23, 2007 between IPC Systems, Inc. and Plaza X Leasing Associates L.L.C.

Sublease dated as of October 29, 2009 between Instinet Group, LLC and Princeton Information Ltd., as amended by that certain First Amendment to Sublease dated as of December 10, 2009, as affected by that certain Letter from Instinet Group, LLC to Charles Schwab & Co., Inc. re: Request for Confirmation – Sublease Within the Term, Request for Consent to Alterations dated December 9, 2009, as affected by that certain Letter from Charles Schwab & Co., Inc. to Plaza X Leasing Associates L.L.C. re: Request for Confirmation – Sublease Within the Term – No Landlord Consent Required, Request for Consent to Alterations dated December 28, 2009.

 

Schedule 9.1.16 - 4


This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.16 - 5


SCHEDULE 9.1.21

INTENTIONALLY DELETED

 

Schedule 9.1.21 - 1


SCHEDULE 9.1.23(3)

FILED TAX RETURNS, DISCLOSURES AND CERTIFICATES

1. PILOT Audit prepared by The Schonbraun McCann Group LLC to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2004 and 2003.

2. PILOT Audit prepared by The Schonbraun McCann Group LLP to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2005 and 2004.

3. PILOT Audit prepared by The Schonbraun McCann Group LLP to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2006 and 2005.

4. PILOT Audit prepared by The Schonbraun McCann Group LLP to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2007 and 2006.

5. PILOT Audit prepared by Cornerstone Accounting Group LLP to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2008 and 2007.

6. PILOT Audit prepared by Cornerstone Accounting Group LLP to the Member of Plaza X Urban Renewal Associates, L.L.C. for the years ended December 31, 2009 and 2008.

This schedule and the contents hereof may be modified and/or supplemented by Seller based on information received from Mack-Cali Realty, L.P. if such information and an updated schedule are delivered by Seller to Purchaser prior to 6:00 p.m. eastern time on May 5, 2010.

 

Schedule 9.1.23(3) - 1


SCHEDULE 9.3

SELLER’S REPRESENTATIVES

 

Property Name

  

City/State

  

Lease

Manager

  

Project

Manager

  

Asset

Manager

  

Regional

Head

Schwab (Charles Schwab & Co)

   Jersey City, NJ    Meredith Colvin   

Paul

Amato

   Bobby Parillo   

Greg

Camia

 

Schedule 9.3 - 1


EXHIBIT A

LEGAL DESCRIPTION OF LAND

ALL that certain lot, parcel or tract of land, situate and lying in the City of Jersey City, County of Hudson and State of New Jersey being more particularly described as follows:.

PARCEL ONE:

Beginning at a point on the southerly side of Second Street Extension (52’ wide) said point being the following two (2) courses along said southerly side of Second Street Extension (52’ wide) as extended, from its intersection with the easterly side of Hudson Street (62’ wide) as extended, and running; thence

a. South 83 degrees 50 minutes 02 seconds East 195.11 feet to a bend; thence

b. South 84 degrees 47 minutes 48 seconds East 102.62 feet to a point of beginning and running; thence

 

  1. South 84 degrees 47 minutes 48 seconds East 35.65 feet along the southerly side of Second Street Extension (52’ wide) to a point of curvature; thence

 

  2. Along a curve to the right having a radius of 50.00 feet, an arc length of 60.93 feet (chord which bears South 49 degrees 53 minutes 06 seconds East 57.23 feet) to a point of reverse curvature; thence

 

  3. Along a curve to the left having a radius of 60.00 feet, an arc length of 160.03 feet along the easterly terminus of Second Street Extension (chord which bears North 88 degrees 37 minutes 11 seconds East 116.64 feet) to a point on curve, thence

 

  4. South 83 degrees 50 minutes 02 seconds East 98.17 feet to a point; thence

 

  5. South 06 degrees 09 minutes 58 seconds West 23.06 feet to a point on curve; thence

 

  6. Southerly along a curve to the right having a radius of 502.36 feet, an arc length of 195.70 feet (chord which bears South 00 degrees 42 minutes 02 seconds West 194.47 feet) to a point on curve; thence

 

  7. North 87 degrees 59 minutes 06 seconds West 204.55 feet to a point; thence

 

  8. North 75 degrees 59 minutes 06 second West 120.02 feet to a point; thence

 

  9. North 08 degrees 00 minutes 54 seconds East 231.23 feet to the point of beginning.

Being known as proposed Lot 35.01 in Block 15 as shown on a certain map entitled “Proposed Subdivision of Lots 35 & 36 in Block 15 and Lots 6 & 18 in Block 10 prepared for Mack-Cali Realty Corp. in the City of Jersey City, Hudson County, New Jersey” prepared by John Zanetakos Associates, Inc., dated January 30, 2001 and labeled Job No. 00-7628-300, and filed in the Hudson County Clerk’s office on August 29, 2001 as map number 3813.

 

Exhibit A - 1


TOGETHER WITH the easements granted to American Financial Exchange, L.L.C. in the Cross Reciprocal Easement Agreement (“CREA”) between and among American Financial Exchange, L.L.C., Plaza VIII & IX Associates, L.L.C., and Cali Harborside (Fee) Associates, L.P., dated September 29, 2003 and recorded on October 7, 2003 in the Hudson County Register’s office in Deed Book 7147, at page 157; as such easements are defined and described therein:

 

   

“Plaza X Storm Water Easement” in, to, under and within the “Plaza 8/9 Storm Water Easement Area”

 

   

“Plaza X Communication Easement” in, to, under and within the “Plaza 8/9 Communication Easement Area”

 

   

“Temporary Plaza X Communication Easement” in, to, under and within the “Temporary Communication Easement Area”

 

   

“Plaza X Water Easement” in, to, under and within the ‘Plaza 8/9 Water Main Easement Area”

 

   

“Plaza X Vehicular Easement” over and across the “Plaza 8/9 Vehicular Easement Area”

 

   

“Plaza X Pedestrian Easement” over and across the “Plaza 8/9 Pedestrian Easement Area”

 

   

“Plaza X Parking Easement” over, on, along and across the “Plaza 8/9 Parking Easement Areas”

PARCEL TWO:

Beginning at a point in the dividing line between Lot 48 in Block 15 as shown on the City of Jersey City Tax Assessment to the south and Lot 30 in Block 15 (Tax Map) to the north, said point of beginning being S 83°50’02” E, 48.53 feet along the dividing line between Lots 48 and 30 in Block 15 (Tax Map) from its intersection with the easterly line of Second Street Extension and running; thence

 

  1. N 06°09’58” E 1.66 feet to a point; thence

 

  2. S 83°54’00” E 50.74 feet to a point; thence

 

  3. S 05°35’27” W 23.12 feet to a point on curve; thence

 

  4. Southerly along a curve to the right having a radius of 694.85 feet an arc length of 136.45 feet, a central angle of 11°15’06” and a chord which bears S 04°19’57” E 136.23 feet to a point of compound curvature; thence

 

  5. Southerly along a curve to the right having a radius of 395.13 feet, an arc length of 60.77 feet, a central angle of 08°48’42” and a chord which bears S 05°41’57” W 60.71 feet to a point on curve; thence

 

  6. N 87°59’06” W 8.16 feet along the easterly extension of the dividing line between Lots 48 and 49 in Block 15 (Tax Map); thence the following three (3) courses along the easterly line of Lot 48 in Block 15 (Tax Map)

 

Exhibit A - 2


  7. Northerly along a curve to the left having a radius of 502.36 feet, an arc length of 195.70 feet, a central angle of 22°19’ 15” and a chord which bears N 00°42’02” E 194.47 feet to a point on curve; thence

 

  8. N 06°09’58” E 23.06 feet to a point on curve; thence

N 83°50’02” W 49.64 feet to a point, the point and place of beginning

 

Exhibit A - 3


EXHIBIT B

FORM OF ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS

THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS (this “ Assignment ”) is made as of               , 2010, by and between iSTAR HARBORSIDE LLC, a Delaware limited liability company (“ Assignor ”), and TRT ACQUISITIONS LLC, a Delaware limited liability company (“ Assignee ”).

WITNESSETH:

WHEREAS , Assignor is the owner of one hundred percent (100%) of the membership interests (the “ Membership Interests ”) in, and is the sole member of, American Financial Exchange L.L.C., a New Jersey limited liability company (the “ Company ”); and

WHEREAS, in furtherance of, and subject to, the terms of that certain Purchase and Sale Agreement dated as of May      , 2010 (as amended from time to time, the “ Purchase Agreement ”), by and between Assignor, as seller, and Assignee, as purchaser, Assignor desires to assign to Assignee, and Assignee desires to accept from Assignor, the Membership Interests.

NOW, THEREFORE , in consideration of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:

1) Recitals . The foregoing recitals are acknowledged to be accurate and are incorporated herein by reference.

2) Assignment . As of the date hereof, Assignor hereby assigns, transfers, and sets over to Assignee, without representation or warranty except as set forth in the Purchase Agreement, all of Assignor’s right, title and interest in and to the Membership Interests. Assignor hereby withdraws as a member of the Company. From and after the date hereof, subject to Assignor’s express obligations under the Purchase Agreement, Assignor shall have no further right, title or interest in the Membership Interests or the Company or any of the assets thereof. Assignor hereby expresses its intention that Assignee shall become a substitute member of the Company in Assignor’s place.

3) Acceptance . From and after the date of this Assignment, Assignee hereby acquires, takes, accepts and assumes from Assignor all of Assignor’s right, title and interest in and to the Membership Interests.

4) Binding Effect . The provisions of this Assignment shall be binding upon Assignor, its successors and assigns, and all persons claiming by, under or through Assignor, and shall inure to the benefit of and be enforceable by Assignee and its successors and assigns.

5) Governing Law . This Assignment and the rights of the parties hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflict of laws.

 

Exhibit B-1


6) Counterparts . This Assignment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.

[SIGNATURE PAGE TO FOLLOW]

 

Exhibit B-2


IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the day and year first written above.

 

ASSIGNOR :
iSTAR HARBORSIDE LLC, a Delaware limited liability company
By:   iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
  By:  

 

  Name:  

 

  Title:  

 

 

ASSIGNEE :
TRT ACQUISITIONS LLC, a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, Its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:   Dividend Capital Total Realty Trust Inc., Its General Partner
      By:  

 

      Name:  

 

      Title:  

 

 

Exhibit B - 3


EXHIBIT C

INTENTIONALLY DELETED

 

Exhibit C - 1


EXHIBIT D

FORM OF FIRPTA CERTIFICATE

[COMMON ADDRESS OF PROPERTY]

Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform                      (“ Transferee ”) that withholding of tax is not required upon the disposition of a U.S. real property interest by iStar Harborside LLC, a Delaware limited liability company (“ Transferor ”), the undersigned, in his capacity as                      of iStar Harborside Member LLC, a Delaware limited liability company, but not individually, hereby certifies to Transferee the following on behalf of Transferor:

1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);

2. Transferor’s U.S. employer identification number is                      ; and

3. Transferor’s office address is                      .

Transferor understands that this certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor.

Dated as of              , 2010.

 

iSTAR HARBORSIDE LLC, a Delaware limited liability company
By:   iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
By:  

 

Name:  

 

Title:  

 

 

Exhibit D - 1


THE STATE OF              

   §
   §

COUNTY OF               

   §

This instrument was acknowledged before me on              , 2010, by                      , the                      of iStar Harborside Member LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

Notary Public, State of                     

SWORN TO AND SUBSCRIBED BEFORE ME by                      on              , 2010.

 

 

Notary Public, State of                     

 

Exhibit D - 2


EXHIBIT E

INTENTIONALLY DELETED

 

Exhibit E - 1


EXHIBIT F

INTENTIONALLY DELETED

 

Exhibit F - 1


EXHIBIT G

NOTICE TO SCHWAB

 

 

518 17 th Street, 17 th Floor

Denver, Colorado 80202

As of              , 2010

VIA FEDERAL EXPRESS

Charles Schwab & Co., Inc.

211 Main Street

San Francisco, CA 94105

Attn: Senior Vice President, Corporate Real Estate and Facilities

Re: Harborside Plaza X, Jersey City, New Jersey

Ladies and Gentlemen:

Reference is hereby made to that certain Amended and Restated Lease dated as of December 29, 2000 (as subsequently amended, modified and supplemented, the “ Lease ”) between Plaza X Leasing Associates L.L.C. (“ PXLA ”), as landlord, and Charles Schwab & Co., Inc. (“ Schwab ”), as tenant. Please be advised that the indirect ownership of PXLA has, as of the date hereof, been transferred to                      (“ Dividend ”). In connection with the above referenced transfer, Schwab will need to redirect certain payments and notice deliveries required under the Lease as set forth below:

Please be advised that you should pay all rent and any other payments due under the Lease to Dividend at the following address:

                                                         

                                                         

                                                         

All checks should be made payable to                      .

In addition, please be advised that until you receive a different written notice from Dividend, please send all notices directed to the Landlord under the Lease to Dividend at the following address:

                                                         

                                                         

                                                         

 

Exhibit G - 1


with copies to:

                                                         

                                                         

                                                         

If you have any questions concerning this notice or the Lease, please call                      at Dividend whose phone number is                      .

We appreciate your cooperation in this matter.

 

Very truly yours,
iSTAR HARBORSIDE LLC :
By:  

 

Name:  

 

Title:  

 

By:  

 

Name:  

 

Title:  

 

 

cc: Charles Schwab & Co., Inc.
  P. O. Box 881566
  San Francisco, CA 94188-1566
  Attention: Corporate Real Estate Lease Administration

 

Exhibit G - 2


EXHIBIT H

FORM OF AUDIT LETTER

[Auditor]

                                 

                                 

Dear Sirs:

We are writing at your request to confirm our understanding that your audit of the Statement of Revenue and Certain Expenses for the year ended          , 200      , was made for the purpose of expressing an opinion as to whether the statement of operating income presents fairly, in all material respects, the results of operations of [INSERT NAME AND ADDRESS OF PROJECT] (the “Project”) in conformity with generally accepted accounting principles.

Certain representations in this letter are described as being limited to matters that are material. Items are considered material if they involve an omission or misstatement of accounting information that, in light of surrounding circumstances, makes it probable that the judgment of a reasonable person relying on the information would be changed or influenced by the omission or misstatement. An omission or misstatement that is monetarily small in amount could be considered material as a result of qualitative factors.

The following representations are made exclusively to the auditor of the Project. In connection with your [INSERT DATE] audit we confirm, to our actual knowledge, with respect to our daily operations and without independent inquiry or investigation, the following representations made during your audit:

We have made available to you all financial records and related data concerning this Project, which are in our possession.

We are not aware of any:

 

  1. Irregularities involving any member of management or employees that could have a materially adverse effect on the statement of operating income.

 

  2. Notices of violations of laws or regulations, the effects of which should be considered for disclosure in the financial statements or as a basis for recording a loss contingency.

 

  3. Material events that have occurred subsequent to          , 200      that would require material adjustment to the statement of operating income.

 

Exhibit H - 1


There are no material transactions that have not been properly recorded in the accounting records underlying the financial statements.

 

SELLER:  

 

  ,
a  

 

 
By:  

 

 
Name:  

 

 

 

Exhibit H - 2


EXHIBIT I

INTENTIONALLY DELETED

 

Exhibit I - 1

Exhibit 2.2.1

FIRST AMENDMENT TO

MEMBER INTEREST PURCHASE AND SALE AGREEMEN T

THIS FIRST AMENDMENT TO MEMBER INTEREST PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 11 th day of May, 2010, by and between iSTAR HARBORSIDE LLC , a Delaware limited liability company (“Seller”), and TRT ACQUISITIONS LLC , a Delaware limited liability company (“Purchaser”).

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Member Interest Purchase and Sale Agreement dated May 3, 2010 (the “Agreement”), relating to the sale and purchase of 100% of the membership interests in American Financial Exchange L.L.C. All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE , in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

AGREEMENT:

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Portfolio Purchase and Sale Agreement . Section 1.1.18 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.18 “Portfolio Purchase and Sale Agreement”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the contest requires, “Portfolio Seller”) dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement dated as of May 11, 2010.”

3. Inspection Period . Section 1.1.10 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.10: “Inspection Period”: The period beginning on the Effective Date and ending on May 21, 2010, subject to extension as provided in Section 6.1.4(1).”

4. Financing . Purchaser acknowledges that there shall be no Financing Commitment Extension Period, and all references thereto in Section 4.3.2 shall be deemed null and void and of no further effect.

5. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

6. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Signature page follows]


IN WITNESS WHEREOF , Purchaser and Seller have executed this Amendment as of the date set forth above.

 

SELLER:
iSTAR HARBORSIDE LLC , a Delaware limited liability company
By:      

iStar Harborside Member LLC, a Delaware limited

liability company, its Managing Member

  By:  

/s/ SAMANTHA GARBUS

  Name:  

Samantha Garbus

  Title:  

Senior Vice President

PURCHASER:

TRT ACQUISITIONS LLC , a Delaware limited

liability company

By:   DCTRT Real Estate Holdco LLC, its Sole Member
  By:   Dividend Capital Total Realty Trust Inc., its General Partner
    By:  

/s/ GREG MORAN

    Name:  

Greg Moran

    Title:  

SVP

 

AGREED TO:
iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE

COMPANY

By:  

 

Name:  

 

Title:  

 

Date:  

 

 

2

Exhibit 2.2.2

SECOND AMENDMENT TO

MEMBER INTEREST PURCHASE AND SALE AGREEMENT

THIS SECOND AMENDMENT TO MEMBER INTEREST PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 21st day of May, 2010, by and between iSTAR HARBORSIDE LLC , a Delaware limited liability company (“Seller”), and TRT ACQUISITIONS LLC , a Delaware limited liability company (“Purchaser”).

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Member Interest Purchase and Sale Agreement, dated as of May 3, 2010, relating to the sale and purchase of 100% of the membership interests in American Financial Exchange L.L.C, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010 (as amended, the “Agreement”). All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE , in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

AGREEMENT:

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Closing Date . Section 1.1.11 of the Agreement is hereby amended and restated in its entirety to read as follows:

“1.1.11 “Closing Date”: June 24, 2010, or such earlier date as may be agreed to in writing by Purchaser and Seller.”

3. Portfolio Purchase and Sale Agreement . Section 1.1.18 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.18 “Portfolio Purchase and Sale Agreement”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the context requires, “Portfolio Seller”), dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, and as further amended by that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010.”

4. Inspection Period . The parties agree that this Amendment constitutes the Due Diligence Waiver Notice contemplated by Section 4.3.1 of the Agreement.


5. Financing Commitment . Section 4.3.2 of the Agreement is hereby amended and restated in its entirety as follows:

“4.3.2 Upon Purchaser’s receipt of a letter or application (the “Harborside Term Sheet”) from New York Life Investment Management LLC (“Harborside Lender”) to Purchaser’s consultant, pursuant to which Harborside Lender would lend to Purchaser $125,000,000.00, secured by the Real Property, Purchaser shall deliver a copy of such Harborside Term Sheet to Seller.”

6. Title Requirements . The Title Company has provided a letter to Purchaser dated May 21, 2010, pursuant to which the Title Company has agreed to issue the Title Policy in the form of the “Pro Forma Policy” (as defined therein), a copy of which is attached hereto as Exhibit J (the “FATCO Letter”). Notwithstanding anything to the contrary set forth in Section 5.3 of the Agreement, Seller hereby agrees to satisfy all of the “Seller Delivery Requirements” set forth in Section 1 of Exhibit B to the FATCO Letter and its portion of the “Joint Delivery Requirements” set forth in Section 3 of Exhibit B to the FACTO Letter on or before the Closing Date. The definition of “Permitted Exceptions” in the last sentence of Section 5.3 is hereby amended and restated as follows:

“The term “Permitted Exceptions” shall mean the exceptions to title set forth in the Pro Forma Policy as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser.”

7. Casualty . The last sentence of Section 6.2 of the Agreement is hereby amended and restated in its entirety as follows:

“Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to the Real Property or Improvements and, as a result of such Casualty, Harborside Lender will not close the Harborside Loan, then this Agreement shall automatically terminate, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with the fourth sentence of Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.”

8. Condemnation . The last sentence of Section 6.3 of the Agreement is hereby amended and restated in its entirety as follows:

“Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to the Real Property and, as a result of such Condemnation, Harborside Lender will not close the Harborside Loan, then this Agreement shall automatically terminate, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with the fourth sentence of Section 3.4 hereof and thereafter the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.”

 

2


9. SNDAs . The first sentence of Section 6.4.3 of the Agreement is hereby amended and restated in its entirety as follows:

“If requested by Harborside Lender, or if required pursuant to the terms of the Schwab Lease, Seller shall promptly after such request send to Schwab a request for a subordination, non-disturbance and attornment agreement in a form approved by Harborside Lender or required by the Schwab Lease (the “SNDA”).”

10. Conditions to Purchaser’s Obligations to Close .

(a) Section 7.2.2(6) of the Agreement is hereby amended and restated in its entirety as follows:

“(6) Closing of Harborside Loan . The closing of the Harborside Loan simultaneously with the Closing (unless the Harborside Loan fails to close as a result of (x) Purchaser’s uncured default under the Harborside Term Sheet, (y) the failure of one or more conditions to close the Harborside Loan which are within Purchaser’s reasonable control to satisfy or (z) Purchaser’s failure to accept documentation for the Harborside Loan that is commercially reasonable for such transactions), shall be a condition to Purchaser’s obligation to close hereunder;”

(b) Section 7.2.2(8) of the Agreement is hereby amended by adding the following after the word “Policy” in the third line:

“((in the form of the Pro Forma Policy as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser). Notwithstanding the foregoing, Purchaser and Seller agree that in no event shall the Title Company’s failure to deliver the Title Policy in the form of the Pro Forma Policy be a failure of a condition to Purchaser’s obligation to Close if such failure to issue the Title Policy in the form of the Pro Forma Policy results from the Title Company not receiving such documents and/or instruments, which are (i) required by the Title Company to issue the Title Policy in the form of the Pro Forma Policy and (ii) not required to be obtained and delivered by Seller to Purchaser, the Title Company or otherwise pursuant to the terms of this Agreement.)”

(b) Section 7.2.2 of the Agreement is hereby amended by adding the following at the end thereof:

“(12) Resignations . It shall be a condition to Purchaser’s obligation to close hereunder that Seller shall have delivered duly executed resignations of all officers, directors and managers of AFE and the Subsidiaries (the “Resignations”), effective as of immediately after the Closing.”

 

3


11. Seller’s Deliveries in Escrow. Section 7.3 of the Agreement is hereby amended by adding the following at the end thereof:

“7.3.14 Resignations . The executed Resignations.”

12. Settlement Agreement . Section 8.1.3 of the Agreement is hereby amended and restated in its entirety as follows:

“8.1.3 Purchaser and Seller shall reasonably cooperate to file all tax returns of AFE and the Subsidiaries in respect of the tax year in which the Closing shall occur. Seller shall not take any action to apply for the reduction or review of the assessed valuation of the Real Property and Improvements (a “Tax Proceeding”) under the Financial Agreement, for the fiscal year in which Closing occurs, it being understood and agreed that the pending settlement discussions relating to the pending audit of the Financial Agreement are expressly excluded herefrom and after the Effective Date through and after the Closing, Seller, AFE and the Subsidiaries (to the extent applicable) shall not enter into a settlement agreement with respect to the pending audit of the Financial Agreement without Purchaser’s prior consent (not to be unreasonably withheld, conditioned or delayed); provided, however, Seller, AFE and the Subsidiaries may enter a settlement agreement with respect to the pending audit of the Financial Agreement at any time without Purchaser’s prior consent if (i) Schwab consents to the terms of such settlement agreement, (ii) Schwab agrees to be liable for any payments thereunder, (iii) Seller has provided prior notice thereof to Purchaser and (iv) the material terms of such settlement agreement are limited to: agreement to increase annual PILOT payments up to $150,000.00 starting in Jersey City’s current fiscal year with a one-time additional payment up to $150,000.00 on account of past due amounts claimed by the City of Jersey City, New Jersey and such settlement agreement releases all parties to the Financial Agreement and the Contracting Agreement from the claims covered by such settlement agreement. The settlement agreement referred to in the foregoing proviso, including without limitation, Schwab’s consent and agreement to be liable for any payments thereunder, or any settlement agreement on more favorable terms to PXURA are each referred to herein as the “PILOT Settlement Agreement”. If PXURA and the City of Jersey City, New Jersey have not entered into the PILOT Settlement Agreement on or prior to the Closing Date, then at Closing (A) Escrow Agent shall (x) withhold $500,000.00 from the Purchase Price (the “PILOT Escrow Deposit”) and (y) immediately deposit the PILOT Escrow Deposit in a segregated interest bearing account maintained by Escrow Agent in the name of Purchaser and Seller (the “PILOT Escrow Account”), and (B) simultaneously therewith, Purchaser, Seller and Escrow Agent shall enter into an escrow agreement regarding the PILOT Escrow Deposit and the PILOT Escrow Account based on Escrow Agent’s

 

4


then standard form escrow agreement with such modifications as are reasonably necessary to reflect the terms of this Section 8.1.3 (the “PILOT Escrow Agreement”). Escrow Agent shall hold the PILOT Escrow Deposit in the PILOT Escrow Account pursuant to the PILOT Escrow Agreement from and after the Closing Date until the earlier of (the “PILOT Escrow Period”) (i) the date on which PXURA and the City of Jersey City, New Jersey enter into the PILOT Settlement Agreement, at which time, Escrow Agent shall immediately disburse the PILOT Escrow Deposit together with all interest accrued thereon to Seller and (ii) 4:00 pm central time on December 31, 2010, at which time, Escrow Agent shall immediately disburse the PILOT Escrow Deposit together with all interest thereon to Purchaser, in which event, Seller shall have no obligation to Purchaser for any payments under the Financial Agreement on account of periods after the Closing Date relating to or arising out of the calculation of the “Total Project Cost” under the Financial Agreement (the “PILOT TPC Matters”). During the PILOT Escrow Period, Seller shall have (1) exclusive control over the form of the PILOT Settlement Agreement and negotiations with the City of Jersey City, New Jersey regarding the substance thereof, subject only to the limitations set forth in this Section 8.1.3 relating to Purchaser’s consent thereto (2) the right to take such legal action against Schwab as necessary, either pursuant to the Schwab Lease or at law or in equity, to enforce Schwab’s obligation pursuant to the Schwab Lease to pay any past or current payments under the Financial Agreement whether pursuant to the PILOT Settlement Agreement or otherwise; provided, however , that Seller shall take no action that would otherwise impair PXLA’s right to collect from Schwab rent and other charges due under the Schwab Lease after the Closing and/or permit Schwab to offset such rent in any way and (3) the right to take any and all actions in furtherance of the foregoing items (1) and (2) (the foregoing items (1), (2) and (3) are referred to herein collectively as “Seller’s PILOT Actions”). Purchaser hereby agrees, subject to the limitations set forth in the preceding sentence (a) that Seller may take Seller’s PILOT Actions either in its own name or in the name of Purchaser, AFE, PXR, PXURA, PXLA or the entity designated by Purchaser to acquire the Membership Interests (“Purchaser’s Designee”), (b) to execute and deliver to Seller such documents or instruments as are necessary to vest in Seller the rights of Purchaser, AFE, PXR, PXURA, PXLA and Purchaser’s Designee to take Seller’s PILOT Actions, including, without limitation, powers of attorney, and (c) to cooperate with Seller, and to cause AFE, PXR, PXURA, PXLA and Purchaser’s Designee to cooperate with Seller, in pursuing Seller’s PILOT Actions. Seller shall keep Purchaser informed of any Seller’s PILOT Actions taken by Seller during the PILOT Escrow Period. This Section 8.1 shall survive the Closing.

Notwithstanding anything to the contrary contained herein, except for PILOT TPC Matters, Seller shall indemnify, defend and hold harmless Purchaser, AFE and the Subsidiaries from and against any claims, demands, losses, liabilities, damages and causes of action arising out of (1) the Financial

 

5


Agreement with respect to Seller’s Ownership Period to the extent not recoverable from Schwab under the Schwab Lease after Purchaser has used commercially reasonable efforts to obtain such recovery from Schwab (provided that Purchaser, AFE and the Subsidiaries shall not be obligated to institute a lawsuit or other legal process against Schwab, but upon request by Seller, Purchaser shall (and shall cause AFE and the Subsidiaries to) reasonably cooperate with Seller at Seller’s expense in a lawsuit or other legal process against Schwab instituted by Seller); or (2) Seller’s PILOT Actions that result in defenses, claims, reductions or offsets to rent against PXLA in its capacity as landlord under the Schwab Lease. The aforesaid indemnification shall survive the Closing.”

13. Purchaser Representations .

(a) Purchaser hereby confirms that Purchaser has obtained the approval and authorization of its board of directors contemplated by Section 9.2.1 of the Agreement.

(b) Section 9.2.7 of the Agreement is hereby amended and restated in its entirety as follows:

9.2.7 Availability of Funds . Subject to obtaining the Harborside Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.

14. Entirety and Amendments . Section 12.6 of the Agreement is hereby amended and restated in its entirety as follows:

“12.6 Entirety and Amendments . The exclusivity obligations and covenants set forth in that certain letter of intent dated April 2, 2010 between iStar Financial Inc., on behalf of Seller, and Purchaser are hereby incorporated herein and made a part of this Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.”

15. Purchaser’s Remedies . Section 10.2 of the Agreement is hereby amended as follows: the clause “$300,000.00” appearing in the fifteenth line thereof is hereby amended by adding the following at the end thereof: “plus such all-in rate lock costs (including, without limitation, swap and credit spreads) as Purchaser may have incurred in connection with the loan contemplated by the Harborside Term Sheet, if any”.

 

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16. Mezzanine Loan . Purchaser hereby acknowledges and agrees that iStar shall no longer have any obligation to provide a Mezzanine Loan with respect to Purchaser’s acquisition of the Membership Interests pursuant to this Agreement. The Agreement is hereby amended by deleting all references to the Mezzanine Loan and iStar’s obligation to provide the Mezzanine Loan with respect to Purchaser’s acquisition of the Membership Interests pursuant to this Agreement.

17. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

18. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Signature page follows]

 

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IN WITNESS WHEREOF , Purchaser and Seller have executed this Amendment as of the date set forth above.

 

SELLER:

iSTAR HARBORSIDE LLC , a Delaware limited

liability company

By:   iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
  By:  

/s/ SAMANTHA GARBUS

  Name:  

Samantha Garbus

  Title:  

Senior Vice President

 

PURCHASER:
TRT ACQUISITIONS LLC , a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, its Sole Member
  By:  

Dividend Capital Total Realty Trust Inc., its

General Partner

    By:  

/s/ GREG MORAN

    Name:  

Greg Moran

    Title:  

SVP

 

AGREED TO:
iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE

COMPANY

By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.2.3

THIRD AMENDMENT TO

MEMBER INTEREST PURCHASE AND SALE AGREEMENT

THIS THIRD AMENDMENT TO MEMBER INTEREST PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 24th day of June, 2010, by and between iSTAR HARBORSIDE LLC , a Delaware limited liability company (“Seller”), and TRT ACQUISITIONS LLC , a Delaware limited liability company (“Purchaser”).

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Member Interest Purchase and Sale Agreement, dated as of May 3, 2010, relating to the sale and purchase of 100% of the membership interests in American Financial Exchange L.L.C, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010 and that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010 (as amended, the “Agreement”). All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE , in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

AGREEMENT:

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Closing Date . Section 1.1.11 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.11 “ Closing Date ”: June 29, 2010, or such earlier date as may be agreed to in writing by Purchaser and Seller.”

3. Portfolio Purchase and Sale Agreement . Section 1.1.18 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.18 “ Portfolio Purchase and Sale Agreement ”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the context requires, “ Portfolio Seller ”), dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010 and as further amended by that certain Third Amendment to Purchase and Sale Agreement, dated as of June 24, 2010.”


4. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

5. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Remainder of Page Intentionally Left Blank;

Signature Page Follows]

 

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IN WITNESS WHEREOF , Purchaser and Seller have executed this Amendment as of the date set forth above.

 

SELLER:
iSTAR HARBORSIDE LLC, a Delaware limited liability company
By:       iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
  By:  

/s/ SAMANTHA GARBUS

  Name:  

Samantha Garbus

  Title:  

Senior Vice President

PURCHASER :
TRT ACQUISITIONS LLC, a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:       Dividend Capital Total Realty Trust Inc., its General Partner
      By:  

/s/ GREG M. MORAN

      Name:   Greg M. Moran
      Title:   Vice President

 

AGREED TO FOR PURPOSES OF SECTION 9.4:
iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE COMPANY
By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.2.4

FOURTH AMENDMENT TO

MEMBER INTEREST PURCHASE AND SALE AGREEMENT

THIS FOURTH AMENDMENT TO MEMBER INTEREST PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into this 25th day of June, 2010, by and between iSTAR HARBORSIDE LLC , a Delaware limited liability company (“Seller”), and TRT ACQUISITIONS LLC , a Delaware limited liability company (“Purchaser”).

R E C I T A L S :

A. Seller and Purchaser have heretofore entered into that certain Member Interest Purchase and Sale Agreement, dated as of May 3, 2010, relating to the sale and purchase of 100% of the membership interests in American Financial Exchange L.L.C, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010 and that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010 (as amended, the “Agreement”). All defined terms in the Agreement are used herein with the same meanings those terms have in the Agreement.

B. Seller and Purchaser desire to amend the Agreement as set forth herein.

NOW, THEREFORE , in consideration of these premises, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:

AGREEMENT:

1. Recitals . The recitals set forth above are hereby incorporated herein.

2. Portfolio Purchase and Sale Agreement . Section 1.1.18 of the Agreement is hereby amended and restated in its entirety as follows:

“1.1.18 “ Portfolio Purchase and Sale Agreement ”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the context requires, “ Portfolio Seller ”), dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010, as further amended by that certain Third Amendment to Purchase and Sale Agreement, dated as of June 24, 2010 and as further amended by that certain Fourth Amendment to Purchase and Sale Agreement, dated as of June 25, 2010.”

3. Definitions . Section 1.1 of the Agreement is hereby amended by adding the following at the end thereof:

“1.1.35 “ NG Partnership Interests Purchase and Sale Agreement ”: That certain Partnership Interests Purchase and Sale Agreement between Purchaser and NG Partnership Interests Seller, dated as of June 25, 2010 relating to the purchase and sale of the NG Partnership Interests.


1.1.36 “ NG Partnership Interests ”: One hundred percent (100%) of the partnership interests in NG LP.

1.1.37 “ NG LP. ”: iStar NG LP, a Delaware limited partnership.

1.1.38 “ CTL Reston Member Interest Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and iStar CTL Holdco LLC, a Delaware limited liability company (“ CTL Reston Seller ”), dated as of June 25, 2010 relating to the purchase and sale of the CTL Reston Membership Interests.

1.1.39 “ CTL Reston Membership Interests ”: One hundred percent (100%) of the membership interests in CTL Reston.

1.1.40 “ CTL Reston ”: iStar CTL Sunset Hills – Reston LLC, a Delaware limited liability company.

1.1.41 “ Other Sellers ”: collectively, NG Partnership Interests Seller, CTL Reston Seller and Portfolio Seller.

1.1.42 “ Other Real Property ”: collectively, the properties commonly known as 11493 Sunset Hills Road, Reston, Virginia and 7555 Colshire Drive, McLean, Virgina.

1.1.44 “ Acquired Interests ” collectively, the NG Partnership Interests and the CTL Reston Membership Interests.

1.1.45 “ Other Purchase and Sale Agreements ”: collectively, the Portfolio Purchase and Sale Agreement, the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement.

1.1.46. “ Acquired Properties ”: collectively, the Membership Interests, the Acquired Interests and the Portfolio Property.

1.1.47 “ NG Partnership Interests Seller ”: collectively, iStar NG Inc., a Delaware corporation, and iStar NG GenPar Inc., a Delaware corporation.

1.1.48 “ Northrop ”: Northrop Grumman Systems Corporation, a Delaware corporation.”

 

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4. Due Diligence/Financing Contingency Termination Rights . The second sentence of Section 4.3.1 of the Agreement is hereby amended and restated as follows:

“If Purchaser delivers a Due Diligence Waiver Notice, this Agreement and the Other Purchase and Sale Agreements shall continue in full force and effect, subject to the provisions of this Agreement and the Other Purchase and Sale Agreements, including Section 4.3.1 hereof and thereof, and Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents (as defined herein and in the Other Purchase and Sale Agreements) and conducted all inspections and tests of the Real Property, the Improvements, the Acquired Properties and the Other Real Property that it considers important.”

5. Delivery of Title Policy and Non-Imputation Endorsement at Closing . The last sentence of Section 5.4 of the Agreement is hereby amended and restated as follows:

“In the event that the Title Company does not issue at Closing, or unconditionally commit at Closing to issue, to Purchaser, (i) owner’s title insurance policy and Co-Insurance in accordance with the Title Commitment with Extended Coverage, insuring AFE’s title interest in the Real Property in the amount of the Purchase Price, subject only to the exclusions from coverage contained in the policy and the Permitted Exceptions (the “ Title Policy ”) and (ii) a non-imputation endorsement in the form approved for issuance in the State of New Jersey (the “ Non-Imputation Endorsement ”), Purchaser shall have the right, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), to terminate this Agreement, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement; provided, however, if either Title Company alone is willing to deliver the Title Policy in the amount of the Purchase Price and the Non-Imputation Endorsement, Purchaser agrees to accept such Title Policy and Non-Imputation Endorsement and Purchaser shall have no right to terminate this Agreement.”

6. Casualty . The third and last sentences of Section 6.2 are hereby amended and restated as follows:

“Within five (5) days after receipt of the Casualty Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Casualty Tenant Termination Event.”

 

3


“Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to the Real Property or Improvements and, as a result of such Casualty, Harborside Lender will not close the Harborside Loan, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with the fourth sentence of Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.”

7. Condemnation . The third and last sentences of Section 6.3 are hereby amended and restated as follows:

“Within five (5) days after receipt of the Condemnation Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement in which case, Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Condemnation Tenant Termination Event.”

“Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to the Real Property and, as a result of such Condemnation, Harborside Lender will not close the Harborside Loan, then, subject to the limitations of Section 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with the fourth sentence of Section 3.4 hereof and thereafter the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.”

8. Conditions to Seller’s Obligation to Close .

(a) Section 7.2.1(4) of the Agreement is hereby amended and restated in its entirety as follows:

“(4) Property . It shall be a condition to Seller’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale

 

4


Agreement shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale Agreement with respect to one or more of the separate sites constituting the Portfolio Properties leased by The Goodyear Tire & Rubber Company (collectively, the “ Goodyear Properties ”) or one or more separate sites constituting the Portfolio Properties leased by CEVA Freight, LLC (collectively, the “ CEVA Properties ”) shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under this Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Membership Interests but proceed to closing under the Other Purchase and Sale Agreements or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Portfolio Seller to terminate the Portfolio Purchase and Sale Agreement and CTL Reston Seller to terminate the CTL Reston Member Interest Purchase and Sale Agreement.”

(b) Section 7.2.1 of the Agreement is hereby amended by adding the following Section 7.2.1(5) at the end thereof:

“(5) Simultaneous Closing . It shall be a condition to Seller’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.”

 

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9. Conditions to Purchaser’s Obligation to Close .

(a) Section 7.2.2(9) of the Agreement is hereby amended and restated in its entirety as follows:

“(9) Property . It shall be a condition to Purchaser’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale Agreement with respect to one or more of the separate sites constituting Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under this Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Membership Interests but proceed to closing under the Other Purchase and Sale Agreements or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Portfolio Seller to terminate the Portfolio Purchase and Sale Agreement and CTL Reston Seller to terminate the CTL Reston Member Interest Purchase and Sale Agreement;”

(b) Section 7.2.2(12) of the Agreement is hereby amended and restated as follows:

“(12) Terminations . Terminations of the officers, directors and managers of AFE and the Subsidiaries (the “ Terminations ”), effective as of immediately after the Closing.”

(c) Section 7.2.2 of the Agreement is hereby amended by adding the following Section 7.2.2(13) at the end thereof:

“(13) Simultaneous Closing . It shall be a condition to Purchaser’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.”

 

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10. Failure to Satisfy Conditions . Section 7.2.3(i) of the Agreement is hereby amended and restated in its entirety as follows:

“(i) subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), terminate this Agreement in its entirety by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein) and Escrow Agent shall immediately direct any Earnest Money previously deposited by Purchaser with Escrow Agent in accordance with Section 3.4 hereof and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or”

11. Seller’s Deliveries in Escrow . Section 7.3.14 of the Agreement is hereby amended and restated as follows:

“7.3.14 Terminations . The executed Terminations.”

12. Survival of Representations and Warranties . Section 9.3 of the Agreement is hereby amended and restated as follows:

“9.3 Survival of Representations and Warranties . The representations and warranties set forth in this Article 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean the actual knowledge of the following persons: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, Carrie Crain, Vice President and persons whose names are set forth on Schedule 9.3 (the foregoing persons are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do

 

7


not have but could have obtained through further investigation or inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4 hereof and Sections 9.4 of the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Other Purchase and Sale Agreements) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate) equals or exceeds (i) $2,000,000 if such breach relates to the Real Property, the Improvements and the Membership Interests, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $2,000,000 and for all such damage above $2,000,000 with respect to the Real Property, the Improvements and the Membership Interests or (ii) $5,000,000 for the Real Property, the Improvements, the Acquired Properties and the Other Real Property, in which event Seller shall be liable (without duplication of any claims made pursuant to subclause (i) of this clause (3)) to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to the Real Property, the Improvements, the Acquired Properties and the Other Real Property, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement or of any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 hereof and Sections 9.4 of the NG Partnership Interests Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement and other than Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of Other Sellers pursuant to Sections 9.3 of the Other Purchase and Sale Agreements will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Acquired Properties and (b) there shall be no threshold or limitation or

 

8


limitation on survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by ARTICLE 10.”

13. Seller’s Remedies . Section 10.1 of the Agreement is hereby amended and restated in its entirety as follows:

“10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder or under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Other Purchase and Sale Agreements, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Other Purchase and Sale Agreements and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Membership Interests hereunder or the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Membership Interests, the Real Property or the Improvements that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Membership Interests, the Real Property or the Improvements. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated,

 

9


Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS, THE REAL PROPERTY OR THE IMPROVEMENTS, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.”

14. Purchaser Remedies . Section 10.2 of the Agreement is hereby amended and restated as follows:

“10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Other Sellers default in their obligations under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Other Purchase and Sale Agreements, Other Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Other Purchase and Sale Agreements and the first Sentence of Section 9.3 hereof and of the Other Purchase and Sale Agreements), and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Membership Interests hereunder or the Other Sellers fail to consummate the sale of the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, in which event Seller shall be liable to Purchaser for its out of pocket expenses incurred in connection with the transaction contemplated hereby, but not to exceed $300,000.00 plus such all-in rate lock costs (including, without limitation, swap and credit spreads) as Purchaser may have incurred in connection with the loan contemplated by the Harborside Term Sheet, if any, (b) enforce specific performance to consummate the sale of the Membership Interests hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit

 

10


asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO SECTION 9.4, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS, THE REAL PROPERTY OR THE IMPROVEMENTS, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.”

15. Counterparts; Facsimile . This Amendment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Amendment, any signature transmitted by facsimile or e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

16. Ratification . The Agreement, as amended hereby, remains in full force and effect and is hereby ratified and confirmed.

[Remainder of Page Intentionally Left Blank;

Signature Page Follows]

 

11


IN WITNESS WHEREOF , Purchaser and Seller have executed this Amendment as of the date set forth above.

 

SELLER:
iSTAR HARBORSIDE LLC, a Delaware limited liability company
By:   iStar Harborside Member LLC, a Delaware limited liability company, its Managing Member
  By:  

/s/ SAMANTHA GARBUS

  Name:  

Samantha Garbus

  Title:  

Senior Vice President

PURCHASER :
TRT ACQUISITIONS LLC, a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:   Dividend Capital Total Realty Trust Inc., its General Partner
      By:  

/s/ GREG MORAN

      Name:  

Greg Moran

      Title:  

SVP

 

AGREED TO FOR PURPOSES OF SECTION 9.4:
iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President


JOINDER BY ESCROW AGENT

Escrow Agent has executed this Amendment in order to confirm that Escrow Agent shall hold the Earnest Money required to be deposited pursuant to the Agreement, as amended by this Amendment, and the interest earn thereon, pursuant to the provisions of the Agreement, as amended by this Amendment.

 

FIRST AMERICAN TITLE INSURANCE COMPANY
By:  

 

Name:  

 

Title:  

 

Date:  

 

Exhibit 2.3

PARTNERSHIP INTERESTS PURCHASE AND SALE AGREEMENT

BETWEEN

iSTAR NG INC.

AND

iSTAR NG GENPAR INC.,

COLLECTIVELY, AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

DATED: JUNE      , 2010


TABLE OF CONTENTS

 

          Page No.
ARTICLE 1 BASIC INFORMATION    1
    1.1    Certain Basic Terms    1
    1.2    Closing Costs    6
    1.3    Notice Addresses    7
ARTICLE 2 PARTNERSHIP INTERESTS    8
    2.1    Partnership Interests    8
ARTICLE 3 EARNEST MONEY    8
ARTICLE 4 DUE DILIGENCE    8
    4.1    Due Diligence Materials To Be Delivered    8
    4.2    Physical Due Diligence    10
    4.3    Due Diligence/Financing Contingency Termination Rights.    11
    4.4    Updated Property Information    11
    4.5    Return of Documents and Reports    12
    4.6    Service Contracts    12
    4.7    Proprietary Information; Confidentiality    12
    4.8    No Representation or Warranty by Seller    13
    4.9    Purchaser’s Responsibilities    13
    4.10    Purchaser’s Agreement to Indemnify    14
ARTICLE 5 TITLE AND SURVEY    14
    5.1    Title Commitment    14
    5.2    Updated Survey    14
    5.3    Title Review    14
    5.4    Delivery of Title Policy and Non-Imputation Endorsement at Closing    14
ARTICLE 6 OPERATIONS AND RISK OF LOSS    15
    6.1    Ongoing Operations    15
    6.2    Casualty    17
    6.3    Condemnation.    18
    6.4    Tenant Estoppel Certificate/SNDA.    18
ARTICLE 7 CLOSING    19
    7.1    Closing    19
    7.2    Conditions to Parties’ Obligation to Close    19
    7.3    Seller’s Deliveries in Escrow    23
    7.4    Purchaser’s Deliveries in Escrow    25
    7.5    Closing Statements    25
    7.6    Purchase Price    25
    7.7    Possession    25
    7.8    Delivery of Books and Records    25
    7.9    Notice to Northrop    26
ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS    26
    8.1    Prorations for Taxes    26

 

i


    8.2

   Prorations for Tenant-Paid Operating Expenses    26

    8.3

   Prorations for Non-Tenant Paid Items    26

    8.4

   Miscellaneous Prorations    28

    8.5

   Leasing Costs    28

    8.6

   Closing Costs    29

    8.7

   Final Adjustment After Closing    29

    8.8

   Tenant Deposits    29

    8.9

   Commissions    29

    8.10

   Accounts    30

    8.11

   Tax Appeals    30
ARTICLE 9 REPRESENTATIONS AND WARRANTIES    31
    9.1    Seller’s Representations and Warranties    31
    9.2    Purchaser’s Representations and Warranties    35
    9.3    Survival of Representations and Warranties    36
    9.4    Company Representations.    38
ARTICLE 10 DEFAULT AND REMEDIES    38
    10.1    Seller’s Remedies    38
    10.2    Purchaser’s Remedies    39
    10.3    Attorneys’ Fees    39
    10.4    Other Expenses    39
ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY    39
    11.1    Disclaimers By Seller    39
    11.2    Sale “As Is, Where Is”    40
    11.3    Seller Released from Liability    41
    11.4    “Hazardous Materials” Defined    42
    11.5    Intentionally Deleted    42
    11.6    Survival    42
ARTICLE 12 MISCELLANEOUS    42

    12.1

   Parties Bound; Assignment    42

    12.2

   Headings    42

    12.3

   Invalidity and Waiver    42

    12.4

   Governing Law    43

    12.5

   Survival    43

    12.6

   Entirety and Amendments    43

    12.7

   Time    43

    12.8

   Intentionally Omitted.    43

    12.9

   No Electronic Transactions    43

    12.10

   Notices    43

    12.11

   Construction    44

    12.12

   Calculation of Time Periods; Business Day    44

    12.13

   Execution in Counterparts    44

    12.14

   Recordation    44

    12.15

   Further Assurances    44

    12.16

   Discharge of Obligations    45

    12.17

   ERISA    45

 

ii


    12.18    No Third Party Beneficiary    45
    12.19    Reporting Person    45
    12.20    Post-Closing Access    45
    12.21    Waiver of Jury Trial    45
    12.22    Information and Audit Cooperation    46
    12.23    Bulk Sales Laws    46

 

iii


LIST OF DEFINED TERMS

 

     Page No.

Acquired Interests

   6

Acquired Properties

   6

Agreement

   1

Assignment and Assumption

   23

Balance Sheets

   34

Books and Records

   5

Business Day

   44

Casualty

   17

Casualty Tenant Termination Event

   17

Casualty Tenant Termination Notice

   17

CERCLA

   41

CEVA Properties

   20

Closing

   19

Closing Date

   3

Code

   35

Code Plan

   35

Co-Insurance

   15

Company Representations

   37

Condemnation

   18

Condemnation Tenant Termination Event

   18

Condemnation Tenant Termination Notice

   18

Confidentiality Agreement

   3

CTL Reston

   6

CTL Reston Member Interest Purchase and Sale Agreement

   5

CTL Reston Membership Interests

   6

CTL Reston Seller

   6

Effective Date

   2

ERISA

   35

ERISA Plan

   35

Escrow Agent

   2

Extended Coverage

   5

Fidelity

   14

Financial Advisor

   2

Financial Statements

   10

First American

   14

Goodyear Properties

   20

GP Partnership Interests

   3

GP Seller

   3

Guaranties

   4

Guaranty

   4

Harborside

   5

Harborside Membership Interests

   5

Harborside Purchase and Sale Agreement

   5

Harborside Seller

   5

 

iv


Hazardous Materials

   41

Improvements

   3

Indemnitor

   37

Intangible Personal Property

   4

iPortal

   8

iStar

   3

Land

   3

Lease

   4

Lease Event

   16

Lease Files

   9

Leases

   4

Leasing Costs

   28

License Agreements

   5

LP Partnership Interests

   3

LP Seller

   3

Non-Imputation Endorsement

   15

Northrop

   5

OFAC

   32

Operating Expenses

   26

Operating Statements

   9

Other Purchase and Sale Agreements

   6

Other Real Properties

   6

Other Sellers

   6

Partnership Interests

   2

Permitted Exceptions

   14

Permitted Liabilities

   34

Plan Assets

   35

Portfolio Property

   3

Portfolio Purchase and Sale Agreement

   3

Portfolio Seller

   3

Pre-Closing Tax Appeals

   30

Property

   3

Property Documents

   8

Property Information

   8

Purchase and Sale Agreements

   1

Purchase Price

   1

Purchaser

   1

Real Property

   3

Rent Roll

   9

Reports

   12

Seller

   1

Seller’s Ownership Period

   5

Seller’s Representatives

   36

Service Contracts

   4

Similar Law

   44

SNDA

   19

 

v


Subsidiary

   3

Subsidiary Agreement

   3

Survey

   9

Survival Period

   36

Tangible Personal Property

   4

Taxes

   25

Tenant Estoppel Certificate

   18

Tenant Receivables

   26

Terminations

   22

Third Party Estoppel Certificate

   19

Title Affidavits

   23

Title Commitment

   14

Title Company

   2

Title Policy

   15

Unbilled Tenant Receivables

   26

Uncollected Delinquent Tenant Receivables

   27

Updated Property Information

   11

 

vi


PARTNERSHIP INTERESTS PURCHASE AND SALE AGREEMENT

This Partnership Interests Purchase and Sale Agreement (this “ Agreement ”) is made and entered into by and between Purchaser and Seller.

RECITALS

A. Defined terms are indicated by initial capital letters. Defined terms shall have the meanings set forth herein, whether or not such terms are used before or after the definitions are set forth.

B. Purchaser desires to purchase the Partnership Interests and Seller desires to sell the Partnership Interests, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants and agreements set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as follows:

ARTICLE 1

BASIC INFORMATION

1.1 Certain Basic Terms . The following defined terms shall have the meanings set forth below:

1.1.1 “ Seller ”: collectively, GP Seller and LP Seller, provided that references herein to “Seller” mean GP Seller with respect to the GP Partnership Interests, LP Seller with respect to the LP Partnership Interests and, for all other references to “Seller”, GP Seller and LP Seller, collectively, in each case, as the context requires.

1.1.2 “ Purchaser ”: TRT Acquisitions LLC, a Delaware limited liability company.

1.1.3 “ Purchase Price ”: $177,000,000.00; subject to adjustment as provided herein. It is acknowledged and agreed by Purchaser and Seller that the Purchase Price of the Partnership Interests is only for purposes of tax reporting and calculation, accounting and allocation. In no event shall the Purchase Price of the Partnership Interests be deemed or construed to reflect the sales price of the Partnership Interests or the Property in a stand alone transaction.

1.1.4 “ Other Purchase and Sale Agreements ”: collectively, the Portfolio Purchase and Sale Agreement, the CTL Reston Member Interest Purchase and Sale Agreement and the Harborside Purchase and Sale Agreement.


1.1.5 “ Title Company ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Chicago, Illinois 60602

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

And

Fidelity Title Insurance Company

8450 E. Crescent Parkway, Suite 410

Greenwood Village, CO 80111

Attn: Ms. Valena Bloomquist

Telephone number: (303) 244-9198

Facsimile number: (720) 489-7593

E-mail: valena.bloomquist@fnf.com

1.1.6 “ Escrow Agent ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

1.1.7 “ Financial Advisor ”: HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, LP.

1.1.8 “ Effective Date ”: The date on which this Agreement is executed by the latter to sign of Purchaser or Seller, as indicated on the signature page of this Agreement. If the execution date is left blank by either Purchaser or Seller, the Effective Date shall be the execution date inserted by the other party.

1.1.9 Intentionally Deleted .

1.1.10 “ Partnership Interests ”: collectively, the GP Partnership Interests and the LP Partnership Interests, in each case, as the context requires, it being agreed that references herein to the “Partnership Interests” mean the GP Partnership Interests with respect to the GP Seller and the LP Partnership Interests with respect to the LP Seller.

 

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1.1.11 “ Closing Date ”: June 29, 2010 , or such earlier date as may be agreed to in writing by Purchaser and Seller.

1.1.12 “ Confidentiality Agreement ”: The letter agreement dated March 31, 2010 between iStar Financial Inc., an affiliate of Seller (“ iStar ), and Purchaser.

1.1.13 “ LP Seller ”: iStar NG Inc., a Delaware corporation.

1.1.14 “ GP Seller ”: iStar NG GenPar Inc., a Delaware corporation.

1.1.15 “ LP Partnership Interests ”: the ninety-nine percent (99%) limited partnership interests in the Subsidiary owned by LP Seller.

1.1.16 “ GP Partnership Interests ”: the one percent (1%) general partnership interest in the Subsidiary owned by GP Seller.

1.1.17 “ Subsidiary ”: iStar NG LP, a Delaware limited partnership, in each case, as applicable.

1.1.18 “ Portfolio Purchase and Sale Agreement ”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the context requires, “ Portfolio Seller ), dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010 and as further amended by that certain Third Amendment to Purchase and Sale Agreement dated as of the date hereof.

1.1.19 “ Portfolio Property ”: Those certain properties described in the Portfolio Purchase and Sale Agreement.

1.1.20 “ Subsidiary Agreement ”: that certain Limited Partnership Agreement of the Subsidiary dated April 10, 2003, and any amendments thereto, if any.

1.1.21 “ Property ”: collectively, the following property:

(1) Real Property . The land described in Exhibit A hereto (the “ Land ”), together with (a) all improvements located thereon, including, without limitation, those certain office buildings, but expressly excluding improvements and structures owned by any tenant or other third party pursuant to the Leases (the “ Improvements ”), (b) all right, title and interest of the Subsidiary, if any, in and to the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining thereto, including without limitation, any and all minerals and mineral rights, oil, gas, and oil and gas rights, development rights, air rights, water and water rights, wells, well rights and well permits, water and sewer taps, and sanitary or storm sewer capacity, and (c) all right, title, and interest of the Subsidiary, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the Land (the Land, together with items (a), (b) and (c) of this Section 1.1.21(1), collectively, the “ Real Property ”).

 

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(2) Leases and Guaranties . All of the Subsidiary’s right, title and interest, without warranty except as set forth herein, in those existing leases and subleases, including any amendments to such leases and subleases made by the Subsidiary, described on Schedule 1.1.21(2) and all leases or sublease which may be made by the Subsidiary after the Effective Date and prior to Closing as permitted by this Agreement (individually a “ Lease ”“ and collectively the “ Leases ”), all guaranties of such Leases, including any amendments to such guaranties, described on Schedule 1.1.21(2) (individually a “ Guaranty ”“ and collectively the “ Guaranties ”), and all other collateral securing the Leases or Guaranties, including without limitation all security deposits and letters of credit.

(3) Tangible Personal Property . All of the Subsidiary’s right, title and interest, without warranty, except as set forth herein, in the equipment, machinery, furniture, furnishings, supplies and other tangible personal property, if any, owned by the Subsidiary and now or hereafter located in and used in connection with the operation, ownership or management of the Real Property, but specifically excluding any items of personal property owned or leased by any tenants at or on the Real Property and further excluding any items of personal property owned by third parties and leased to the Subsidiary (collectively, the “ Tangible Personal Property ”), which excluded items of personal property are listed on Schedule 1.1.21(3) .

(4) Intangible Personal Property . All of the Subsidiary’s right, title and interest, if any, without warranty, except as set forth herein, in all intangible personal property related to the Real Property and the Improvements, including, without limitation: all trade names and trade marks associated with the Real Property and the Improvements, including the Subsidiary’s rights and interests, if any, in the name of the Real Property; the plans and specifications and other architectural and engineering drawings for the Improvements, if any; contract rights related to the operation, ownership or management of the Real Property, including maintenance, service, construction, supply and equipment rental contracts, if any, but not including Leases or License Agreements (collectively, the “ Service Contracts ”); warranties; governmental permits, approvals and licenses, if any; and telephone exchange numbers (all of the items described in this Section 1.1.21(4) collectively referred to as the “ Intangible Personal Property ”). Tangible Personal Property and Intangible Personal Property shall not include (a) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller and the Subsidiary or any affiliate of Seller or the Subsidiary, (b) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property, Seller and/or the Subsidiary, or which are subject to a confidentiality agreement, (c) such documents, materials or information received by Seller or the Subsidiary from

 

-4-


tenants and covered by confidentiality agreements between such tenants and Seller or the Subsidiary, except that such documents, materials or information shall be included in Tangible Personal Property if Purchaser shall have agreed in writing to be bound by the terms of such confidentiality agreements prior to Seller’s delivery of such documents, materials and information to Purchaser, and (d) any trade name, mark or other identifying material that includes the name “iStar” or any derivative thereof.

(5) License Agreements . All of the Subsidiary’s right, title and interest, without warranty, except as set forth herein, in and to all agreements (other than the Leases and the Guaranties), if any, for the leasing or licensing of rooftop space or equipment, cable access and other space, telecommunications equipment, equipment and facilities that are located on or within the Real Property and generate income to the Subsidiary as the owner of the Real Property, including agreements which may be made by the Subsidiary after the Effective Date and prior to Closing as permitted by this Agreement (the “ License Agreements ”).

1.1.22 “ Books and Records ”: collectively, all books and records maintained by Seller and the Subsidiary in connection with the ownership or operation of the Property or with respect to corporate matters of the Subsidiary.

1.1.23 “ Extended Coverage ”: means the deletion of exceptions 2, 3, 4 and 5 from Schedule B – Section 2 of the Title Commitment.

1.1.24 “ Seller’s Ownership Period ”: The period beginning on May 15, 2002 and continuing through the Closing Date.

1.1.25 “ Harborside Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and iStar Harborside LLC, a Delaware limited liability company (“ Harborside Seller ”), dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010 and as further amended by that certain Third Amendment to Member Purchase and Sale Agreement, dated as of the date hereof.

1.1.26 “ Harborside ”: The property commonly known as Harborside Financial Center Plaza X, Jersey City, New Jersey.

1.1.27 “ Harborside Membership Interests ”: The one hundred percent (100%) membership interests in American Financial Exchange L.L.C. owned by Harborside Seller.

1.1.28 “ Northrop ”: Northrop Grumman Systems Corporation, a Delaware corporation.

1.1.29 “ CTL Reston Member Interest Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and CTL Reston Seller, dated as of the date hereof relating to the purchase and sale of the CTL Reston Membership Interests.

 

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1.1.30 “ CTL Reston Membership Interests ”: One hundred percent (100%) of the membership interests in CTL Reston.

1.1.31 “ CTL Reston ”: iStar CTL Sunset Hills – Reston LLC, a Delaware limited liability company.

1.1.32 “ Other Sellers ”: collectively, CTL Reston Seller, Portfolio Seller and Harborside Seller.

1.1.33 “ Other Real Properties ”: collectively, (A) Harborside and (B) the property commonly known as 11493 Sunset Hills Road, Reston, Virginia.

1.1.34 “ Acquired Interests ”: collectively, the CTL Reston Membership Interests and the Harborside Membership Interests.

1.1.35 “ Other Purchase and Sale Agreements ”: collectively, the Harborside Purchase and Sale Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement.

1.1.36 “ Acquired Properties ”: collectively, the Partnership Interests, the Acquired Interests and the Portfolio Property.

1.1.37 “ CTL Reston Seller ”: iStar CTL Holdco LLC, a Delaware limited liability company.

1.2 Closing Costs . Closing costs shall be allocated and paid as follows:

 

Cost

  

Responsible Party

Title Commitment required to be delivered pursuant to Section 5.1    Seller
Premium for standard form Title Policy with Extended Coverage, Co-Insurance and one-half (1/2) of the Non-Imputation Endorsement (subject to this Section 1.2 and Section 5.4) required to be delivered pursuant to Section 5.4    Seller
Premium for any upgrade of the Title Policy for additional coverage, including, without limitation, the premium for any re-insurance, and any endorsements to the Title Policy desired by Purchaser (except that Purchaser shall pay only one-half (1/2) of the premium for the Non-Imputation Endorsement), any inspection fee charged by the Title Company, tax certificates, municipal and utility lien certificates, and any other Title Company charges other than those required in connection with satisfying any liens which are not Permitted Exceptions    Purchaser

 

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Any increase in the premium for the Title Policy attributable to obtaining Co-Insurance as provided in Section 5.4    Purchaser
Any costs required to cause the Title Company to issue the Title Policy with Extended Coverage    Seller
Costs of a new survey and/or any revisions, modifications or recertifications to the existing Survey.    Seller
Costs for UCC Searches    Purchaser
Recording Fees    Paid in accordance with local custom
Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or assessments    Paid in accordance with Schedule 1.2
Any escrow fee charged by Escrow Agent for conducting the Closing    Purchaser  1 / 2 Seller  1 / 2
Real Estate Fee to Financial Advisor    Seller
All other closing costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring the same.   

1.3 Notice Addresses . All notices required or permitted to be sent hereunder shall be sent as follows:

 

Purchaser:    TRT Acquisitions LLC    Copies to:    TRT Acquisitions LLC
   518 17 th Street, Suite 1700       518 17 th Street, Suite 1700
   Denver, CO 80202       Denver, CO 80202
Attention:   

Mr. John Blumberg

Mr. Greg Moran

      Attention: Joshua J. Widoff, Esq.
Telephone:    303-228-2200       Telephone: 303-228-2200
Facsimile:    303-577-9797       Facsimile: 303-869-4602
E-mail:    gmoran@dividendcapital.com       E-mail: jwidoff@dividendcapital.com
        

and

 

Greenberg Traurig, LLP

200 Park Avenue

New York, NY 10166

Attention: Robert J. Ivanhoe, Esq.

Telephone: 212-801-9333

Facsimile: 212-801-6400

E-mail: ivanhoer@gtlaw.com

Seller:    c/o iStar Financial Inc.    Copies to:    iStar Financial Inc.
   1114 Avenue of the Americas       1114 Avenue of the Americas
   New York, NY 10036       New York, NY 10036
   Attention: Samantha Garbus       Attn: Mary-Beth Roselle, Esq.
   Telephone: 212-930-9407       Telephone: 212-930-9481
   Facsimile: 212-930-9494       Facsimile: 212-930-9494
   E-mail: sgarbus@istarfinancial.com       E-mail: mroselle@istarfinancial.com

 

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iStar Asset Services Inc.

180 Glastonbury Boulevard

Glastonbury, CT 06033

Attn: President

Telephone: 860-815-5910

Facsimile: 860-815-5901

E-mail: brubin@istarfinancial.com

 

Katten Muchin Rosenman LLP

525 West Monroe St.

Chicago, IL 60661-3693

Attn: Gregory P.L. Pierce, Esq.

Phone: 312-902-5541

Fax: 312-577-8893

Email: greg.pierce@kattenlaw.com

ARTICLE 2

PARTNERSHIP INTERESTS

2.1 Partnership Interests . Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Partnership Interests.

ARTICLE 3

EARNEST MONEY

Purchaser and Seller acknowledge and agree (i) that Purchaser has deposited with Escrow Agent Earnest Money (as defined in the Portfolio Purchase and Sale Agreement) in the amount of $46,200,000.00, (ii) that a portion of the Earnest Money equal to the Partnership Interests Earnest Money is allocated to the purchase and sale of the Partnership Interests pursuant to this Agreement, and (iii) the Earnest Money, including the Partnership Interests Earnest Money, shall be held and disbursed by Escrow Agent pursuant to, and in accordance with, the terms and provisions of the Portfolio Purchase and Sale Agreement. “Partnership Interests Earnest Money” means the product of (1) the Earnest Money and (2) the ratio of (A) the Purchase Price hereunder to (B) the sum of the (x) Purchase Price hereunder, (y) the Purchase Price under the Portfolio Purchase and Sale Agreement and (z) the Purchase Price under the CTL Reston Member Interest Purchase and Sale Agreement

ARTICLE 4

DUE DILIGENCE

4.1 Due Diligence Materials To Be Delivered . Seller has delivered to Purchaser complete (to Seller’s knowledge) copies of, or made electronic copies available to Purchaser on Seller’s iPortal internet site relating to the Property and Partnership Interests (“ iPortal ”), the following (the “ Property Information ,” or the “ Property Documents ”):

4.1.1 Rent Roll . A current rent roll in Seller’s standard form (“ Rent Roll ”) for the Property;

 

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4.1.2 Financial Information . Operating statements and summaries of capital expenditures pertaining to the Property during the Seller’s Ownership Period (collectively, “ Operating Statements ”);

4.1.3 Environmental Reports . A copy of any environmental reports or environmental site assessments related to the Property prepared for the benefit of Seller or the Subsidiary, it being acknowledged by Purchaser that Purchaser shall not be entitled to rely thereon absent an express reliance letter from the company issuing such environmental reports or environmental site assessments obtained by Purchaser at Purchaser’s sole cost and expense;

4.1.4 Tax Statements . Ad valorem tax statements relating to the Property for Seller’s Ownership Period;

4.1.5 Survey . A copy of the most current survey, if any, of the Property in Seller’s possession (the “ Survey ”);

4.1.6 Service Contracts . Copies of any Service Contracts for the Property;

4.1.7 Personal Property . A list of Tangible Personal Property for the Property;

4.1.8 License Agreements . Copies of any License Agreements for the Property;

4.1.9 Lease Files . The lease file for the Leases affecting the Property, including, without limitation, the Leases, any amendments thereto, the Guaranties (if applicable), any amendments thereto, any letter agreements, any assignments which are then in effect and any letters of credit which are then in effect (collectively, the “ Lease Files ”);

4.1.10 Maintenance Records and Warranties . Maintenance work orders for the Property for the 12 months preceding the Effective Date and warranties for the Property, if any, on roofs, air conditioning units, fixtures and equipment;

4.1.11 Plans and Specifications . Building plans and specifications relating to the Property, if any;

4.1.12 Licenses, Permits and Certificates of Occupancy . Licenses, permits and certificates of occupancy relating to the Property and umbrella policies related thereto;

4.1.13 Insurance Certificates . Copies of certificates evidencing the existing liability and casualty insurance coverage for the Property maintained by the Subsidiary and other affiliates of Seller;

 

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4.1.14 Intentionally Deleted ;

4.1.15 Organizational Documents . The Subsidiary Agreement, all related articles, charters, certificates of formation, and registrations and minutes, and any amendments and modifications thereto;

4.1.16 Books and Records . The Books and Records; and

4.1.17 Financial Statements . Unaudited financial statements and reports of the Subsidiary in such form as compiled by Seller or the Subsidiary during Seller’s Ownership Period (collectively, the “ Financial Statements ”).

Except for the Rent Roll contemplated in Section 4.1.1, Seller’s obligation to deliver the items listed in this Section 4.1 shall be limited to the extent such items are in the possession of Seller or the Subsidiary.

4.2 Physical Due Diligence . As of the Effective Date, Purchaser acknowledges and agrees that Purchaser has conducted such inspections and tests of the Property, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, as Purchaser has deemed necessary to satisfy itself as to the condition of the Property. Commencing on the Effective Date and continuing until the Closing, subject to the terms of the Leases, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting such additional reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller the greater of (i) two (2) full Business Days’ or (ii) the minimum notice period required by the applicable Leases for the Property, written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent shall not be unreasonably withheld or conditioned), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser and its contractors, agents and representatives have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury or death and property damage insurance including coverage for contractual liability and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (2) workers’ compensation and employers’ liability insurance with limits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder Seller, the Subsidiary and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. The requirement to carry the insurance specified in the preceding

 

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sentence may be satisfied through blanket or umbrella insurance policies carried by Purchaser or its affiliates. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any Seller-designated tenant representative; provided, however, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any Seller-designated tenant representative and allow Seller the opportunity to participate in such communication if Seller desires. No assurance or guaranty is afforded by Seller that any Seller-designated tenant representative will communicate with Purchaser or Purchaser’s representatives. Subject to the provisions of Section 4.7 and 4.10 hereof, Purchaser or Purchaser’s representatives may, without Seller’s consent or participation, communicate with any governmental authority for the sole purpose of gathering information regarding current zoning compliance of the Real Property and current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement. Other than as set forth in the previous sentence, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section 4.2, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means in person or otherwise, and includes requests for inspections or other access to the Property.

4.3 Due Diligence/Financing Contingency Termination Rights .

4.3.1 Purchaser acknowledges and agrees that as of the Effective Date Purchaser has received or had access to all Property Documents (as defined herein and in the Other Purchase and Sale Agreements) and has conducted all inspections and tests of the Property, the Acquired Properties and the Other Real Property that it considers important.

4.3.2 Purchaser intends to obtain financing for the transactions contemplated by this Agreement and the Other Purchase and Sale Agreements from (i) Fixed Rate Lender, Floating Rate Lender and Harborside Lender pursuant to the terms of the Fixed Rate Loan Term Sheet, the Floating Rate Loan Term Sheet and the Harborside Term Sheet, respectively, copies of which have been delivered to iStar and Seller, and (ii) iStar in the form of the Mezzanine Loan. iStar has agreed to provide the Mezzanine Loan on and subject to the terms and conditions of Section 4.3.2 of the Portfolio Purchase and Sale Agreement and Schedule 4.3.2 attached thereto. Capitalized terms used in this Section 4.3.2 and not defined in this Agreement shall have the meanings ascribed to such terms in the Portfolio Purchase and Sale Agreement.

4.4 Updated Property Information . From the Effective Date through the Closing Date, if and to the extent that Seller or the Subsidiary receives from an unaffiliated third-party any additional Property Information not previously provided to Purchaser, or if and to the extent that Seller or the Subsidiary receive any document, notice or correspondence from an unaffiliated third-party or otherwise obtains actual knowledge from an unaffiliated third-party source of a condition arising after the Effective Date that would render any of the representations and warranties of Seller in Section 9.1 untrue if and to the extent remade after the Effective Date,

 

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Seller shall promptly so notify Purchaser and shall make electronic copies of all such documents, notices, correspondence or other information in Seller’s or the Subsidiary’s possession (“ Updated Property Information ”) available to Purchaser on iPortal. Updated Property Information may include any information disclosed in the Tenant Estoppel Certificate, but such updated information shall remain subject to Purchaser’s rights pursuant to Section 7.2.1(1) and 7.2.3. The representations and warranties of Seller in Section 9.1 shall be deemed amended to reflect such Updated Property Information, provided that if the amendment or deemed amendment of any representation or warranty reflects a fact or circumstance that would trigger a termination, extension or other right of Purchaser under this Agreement, the amendment or deemed amendment of any representation or warranty to reflect such fact or circumstance shall not vitiate such right of Purchaser.

4.5 Return of Documents and Reports . As additional consideration for the transaction contemplated herein, if Purchaser terminates this Agreement, Purchaser shall provide to Seller, if requested by Seller, promptly following the receipt of notice from Seller after the termination of this Agreement, copies of all “Reports”. “ Reports ”“ mean (a) written third-party reports, tests, investigations and studies that pertain to contamination of, or environmental concerns regarding, the Property delivered to Purchaser or its affiliates, and (b) all other written third party reports, investigations and studies, other than economic analyses in each case under (a) and (b) prepared for Purchaser in connection with its due diligence review of the Property, including, without limitation, any and all Reports involving structural or geological conditions, environmental, hazardous waste or hazardous substances contamination of the Property, if any. The Reports shall not include any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Purchaser, or which are subject to a confidentiality agreement. The Reports shall be delivered to Seller at no cost to Seller and without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto. Purchaser’s obligation to deliver the Reports to Seller shall survive the termination of this Agreement.

4.6 Service Contracts . On or prior to the Closing Date, Purchaser will advise Seller in writing which Service Contracts Purchaser requests that Seller or the Subsidiary terminate at or prior to Closing, provided Seller and the Subsidiary shall have no obligation to terminate any Service Contracts which by their terms cannot be terminated without penalty or payment of a fee (unless Purchaser agrees in writing to pay such fee). Seller shall deliver at Closing notices of termination of all Service Contracts that Purchaser so directs. The Subsidiary shall from and after the Closing Date continue to be bound by those Service Contracts (a) that Purchaser has elected not to have Seller or the Subsidiary terminate, and (b) for which a termination notice is delivered as of or prior to Closing but for which termination is not effective until after Closing.

4.7 Proprietary Information; Confidentiality . Purchaser agrees that it is bound by the Confidentiality Agreement as if it were a party thereto, and the Confidentiality Agreement remains in full force and effect. Notwithstanding anything to the contrary set forth in the Confidentiality Agreement, (a) each party acknowledges that the other party shall be allowed to disclose the existence of this Agreement and the contents thereof in order to comply with certain disclosure requirements relating to public companies and their affiliates and (b) Purchaser shall be allowed to disclose the existence of this Agreement, and deliver the Property Information and

 

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Updated Property Information, to third parties in connection with such third parties’ potential acquisition from Purchaser of the Partnership Interests, the Property or interests therein after the Closing Date so long as such third parties have agreed in writing to be bound by the terms of the Confidentiality Agreement prior to Purchaser’s disclosure of the existence of this Agreement, and delivery of the Property Information and Updated Property Information, to such third parties. The parties shall coordinate, in advance, with respect to any such public filings and/or press releases. After the Closing there shall be no restriction as between Purchaser, on the one hand, and Seller and the Subsidiary, on the other hand, on Purchaser’s disclosure of Property Information or Updated Property Information.

4.8 No Representation or Warranty by Seller . Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Documents, the Updated Property Information or the source(s) thereof. Purchaser further acknowledges that some if not all of the Property Documents and Updated Property Information were prepared by third parties other than Seller and the Subsidiary. Except as expressly set forth in this Agreement or in any of the documents delivered at the Closing, (a) Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents or Updated Property Information, or in any other written or oral communications transmitted or made available to Purchaser, (b) Purchaser shall rely solely upon its own investigation with respect to the Partnership Interests and the Property, including, without limitation, their physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto, and (c) Seller and the Subsidiary have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Documents and Updated Property Information and are providing the Property Documents and Updated Property Information solely as an accommodation to Purchaser.

4.9 Purchaser’s Responsibilities . In conducting any inspections, investigations or tests of the Property, Property Documents and/or Updated Property Information, Purchaser and its agents and representatives shall: (a) not disturb the tenants or interfere with their use of the Property pursuant to their respective Leases; (b) not interfere with the operation and maintenance of the Property; (c) not damage any part of the Property or any personal property owned or held by any tenant or any third party; (d) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or any tenants or their agents, guests, invitees, contractors and employees; (e) comply with all applicable laws; (f) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Property; (g) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (h) subject to the provisions of Section 4.10, repair any damage to the Real Property resulting directly or indirectly from any such inspection or tests; and (i) not reveal or disclose prior to Closing any information obtained during the Inspection Period (as defined in the Portfolio Purchase and Sale Agreement) concerning the Property, the Property Documents and the Updated Property Information to anyone other than the Permitted Recipients (as defined in the Confidentiality Agreement), in accordance with the confidentiality standards set forth in Section 4.7 above, or except as may be otherwise required by law. Purchaser’s obligations under this Section 4.9 shall survive the termination of this Agreement.

 

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4.10 Purchaser’s Agreement to Indemnify . Purchaser hereby agrees to indemnify, defend and hold Seller and the Subsidiary harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests permitted under this Agreement or any violation of the provisions of Sections 4.2, 4.7, and 4.9; provided, however, the indemnity shall not protect Seller and the Subsidiary from any liabilities for matters merely discovered by Purchaser (i.e., environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of Seller and the Subsidiary it being agreed by Purchaser and Seller that the mere discovery by Purchaser of such matters shall not constitute an aggravation of any pre-existing liability of Seller and the Subsidiary. Purchaser also hereby agrees to indemnify, defend and hold any tenant harmless from and against any and all claims, causes of action, damages, liabilities and expenses which such tenant may suffer or incur due to Purchaser’s breach of its obligation under Sections 4.7 and 4.9 above to maintain the confidential nature of any Property Documents, Updated Property Information or other information relative to such tenant. Purchaser’s obligations under this Section 4.10 shall survive the termination of this Agreement and shall survive the Closing.

ARTICLE 5

TITLE AND SURVEY

5.1 Title Commitment . Purchaser acknowledges that a copy of a current commitment for title insurance or a preliminary title report with respect to the Property, together with copies of all documents of record referred to therein (the “ Title Commitment ”) issued by First American on an ALTA 2006 Owner’s Form or state promulgated form has been delivered or made available to Purchaser.

5.2 Updated Survey . Purchaser has arranged, at Seller’s expense, for the preparation of a new survey or the revision, modification, or re-certification of the existing Survey as necessary in order for First American to delete the survey exception from the Title Policy.

5.3 Title Review . Seller shall have no obligation to cure title objections except liens of an ascertainable amount created by, under or through Seller or the Subsidiary, or assumed by Seller or the Subsidiary, which liens Seller shall cause to be released at or prior to Closing (with Seller having the right to apply the Purchase Price or a portion thereof for such purpose), and Seller or the Subsidiary shall deliver the Property free and clear of any such liens; provided, however, that the foregoing requirement to discharge liens shall not apply to liens on any tenant’s leasehold estate. Seller further agrees to remove any exceptions or encumbrances to title which are voluntarily created by, under or through Seller or the Subsidiary after the Effective Date without Purchaser’s consent (if requested, such consent shall not be unreasonably withheld or delayed). The term “ Permitted Exceptions ”“ shall mean the exceptions to title set forth in the Pro Forma Policy (as defined in the Portfolio Purchase and Sale Agreement) as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser.

5.4 Delivery of Title Policy and Non-Imputation Endorsement at Closing . The parties acknowledge that First American Title Insurance Company, National Commercial Services – Chicago (“ First American ”) and Fidelity Title Insurance Company (“ Fidelity ”)

 

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constitute the Title Company. First American shall act as the lead Title Company and underwriter and shall issue the Title Policy and the Non-Imputation Endorsement; provided, however, that Purchaser may obtain co-insurance from Fidelity in the amount of up to fifty percent (50%) of the Purchase Price of the Property in the form of a co-insurance endorsement (“ Co-Insurance ”) so long as (i) the cost of such Co-Insurance does not increase the total cost of title insurance that Seller would otherwise pay to First American if First American were insuring the full Purchase Price unless Purchaser pays for such increased cost of title insurance and (ii) the issuance of such Co-Insurance does not delay the Closing. Purchaser, at Purchaser’s sole cost and expense, may obtain re-insurance with respect to the Title Policy from such third parties as Purchaser may elect so long as obtaining such re-insurance does not delay the Closing. In the event that the Title Company does not issue at Closing, or unconditionally commit at Closing to issue, to Purchaser, (i) an owner’s title insurance policy and Co-Insurance in accordance with the Title Commitment with Extended Coverage, insuring the Subsidiary’s title interest in the Real Property in the amount of the Purchase Price, subject only to the exclusions from coverage contained in the policy and the Permitted Exceptions (the “ Title Policy ”) and (ii) a non-imputation endorsement with respect to the conveyance of the Partnership Interests in the form approved for issuance in the State of Virgina (the “ Non-Imputation Endorsement ”), Purchaser shall have the right, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), to terminate this Agreement, in which case the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement; provided, however, if either Title Company alone is willing to deliver the Title Policy in the amount of the Purchase Price and the Non-Imputation Endorsement, Purchaser agrees to accept such Title Policy and Non-Imputation Endorsement and Purchaser shall have no right to terminate this Agreement.

ARTICLE 6

OPERATIONS AND RISK OF LOSS

6.1 Ongoing Operations . From the Effective Date through Closing:

6.1.1 Leases, Service Contracts and License Agreements . Seller will cause the Subsidiary to perform their material obligations under the Leases, Service Contracts and License Agreements unless the Subsidiary are excused from performing such obligations pursuant to such Leases, Services Contracts and License Agreements.

6.1.2 New Contracts . Except as provided in Section 6.1.4, Seller will not cause the Subsidiary to enter into any contract that will be an obligation affecting the Property subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than 30 days’ prior notice.

6.1.3 Maintenance of Improvements; Removal of Personal Property . Subject to Sections 6.2 and 6.3, Seller shall cause the Subsidiary to maintain or cause the Subsidiary to use reasonable efforts to cause the tenants under the Leases to maintain all Improvements substantially in their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent with the Subsidiary’s maintenance of the Improvements during the Subsidiary’s period of ownership. Seller will cause the Subsidiary not to remove any Tangible Personal Property except as may be required for necessary repair or replacement or with respect to items that, in Seller’s judgment are obsolete, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property.

 

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6.1.4 Leasing; License Agreements . Seller will cause the Subsidiary not to (i) amend or terminate any existing Lease or License Agreement, (ii) consent to the assignment of any Lease or License Agreement, (iii) enter into any new Lease or new License Agreement, (iv) grant their consent, to the extent the Subsidiary’s consent is required, to a sublease of the Property, a modification of a sublease, an assignment of a sublease or other item for which a consent is required under any Lease or License Agreement or (v) grant an acknowledgement with respect to a sublease of the Property, a modification of a sublease or an assignment of a sublease (the foregoing items (i), (ii), (iii), (iv) and (v) are each referred to herein as, a “ Lease Event ”) after the Effective Date and prior to the Closing Date without first (a) providing Purchaser all relevant supporting documentation, as reasonably determined by Seller, including, without limitation, financial information for the assignee, tenant, subtenant and any guarantor to the extent in Seller’s or the Subsidiary’s possession, and (b) obtaining Purchaser’s approval of such Lease Event. Purchaser shall be held to the same standard for approval as Seller or the Subsidiary, as applicable, are held to in the document giving rise to such approval, consent, or acknowledgement right, and Purchaser agrees to give Seller written notice of its approval or disapproval of a proposed Lease Event within three (3) Business Days after Purchaser’s receipt of the items in Section 6.1.4(a) and Section 6.1.4(b). If Purchaser does not respond to Seller’s request within such time period, then Purchaser will be deemed to have approved such Lease Event. So long as Purchaser has complied with the standard for review described above, Purchaser may withhold its approval in its reasonable discretion, and Seller will cause the Subsidiary not to execute or grant such Lease Event without Purchaser’s written approval.

Seller shall cause the Subsidiary not to apply any tenant or licensee security deposits on account of any alleged default by any tenant or licensee unless the Subsidiary has terminated the applicable Lease or License Agreement and obtained possession of the demised or licensed premises. All tenant and licensee security deposits collected and not applied by the Subsidiary as of the Effective Date are set forth on Schedule 6.1.4 .

6.1.5 Insurance . Seller will cause the Subsidiary not to terminate or allow any insurance maintained by the Subsidiary with respect to the Property or any umbrella coverage insurance carried by any affiliate of Seller which insures the Property to lapse unless replaced by equivalent coverage. Upon the Effective Date, Seller shall cause the Subsidiary and Seller’s affiliates to name Purchaser as an additional insured on all insurance maintained by the Subsidiary with respect to the Property and on all umbrella insurance coverage carried by any affiliate of Seller which insures the Property.

6.1.6 No Amendment . After the Effective Date, Seller shall not, and Seller shall not permit the Subsidiary, to amend the Subsidiary Agreement.

6.1.7 No Merger . Seller shall not permit the Subsidiary to merge or consolidate with or agree to merge or consolidate with, or purchase or agree to purchase all or substantially all of the assets of, or otherwise acquire, any corporation, partnership or other business organization.

 

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6.1.8 Partnership Interests . Seller shall not permit the Subsidiary to authorize for issuance, issue, sell or delivery any additional partnership interests in the Subsidiary or grant any option, warrant or other right to purchase any such partnership interests. Seller shall not permit the Subsidiary to split, combine or reclassify any of the partnership interests in the Subsidiary.

6.1.9 Debt . Seller shall not permit the Subsidiary to incur or become subject to, nor agree to incur, any debt for borrowed money, guaranty any indebtedness, or incur any liabilities other than and specifically excluding liabilities incurred in the ordinary course of business related to the ownership and management of the Property.

6.1.10 Conditions and Obligations . To the extent performance of any obligation of Seller under this Agreement or the satisfaction of any condition of Purchaser’s obligation to close requires the performance of the Subsidiary, Seller shall cause the applicable Subsidiary, as the case may be, to perform or satisfy same.

6.2 Casualty . If after the Effective Date and prior to the Closing the Property is damaged by fire or other casualty (a “ Casualty ”), Seller shall, promptly upon Seller or the Subsidiary receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Casualty, Northrop is entitled to and elects to terminate its Lease with respect to the Property (a “ Casualty Tenant Termination Event ”), then Seller shall promptly upon Seller or the Subsidiary receiving notice of such Casualty Tenant Termination Event notify Purchaser of the same (a “ Casualty Tenant Termination Notice ”). Within five (5) days after receipt of the Casualty Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement, in which case the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Partnership Interests notwithstanding the Casualty Tenant Termination Event. If (i) Purchaser elects to acquire the Partnership Interests notwithstanding the Casualty Tenant Termination Event or fails to terminate this Agreement with respect to the Partnership Interests within such five (5) day period, or (ii) such Casualty does not give rise to a Casualty Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, (1) Seller shall provide written confirmation that any resulting insurance proceeds (including any rent loss insurance and rent abatement insurance applicable to any period beginning with the Closing Date) due the Subsidiary or an affiliate of Seller as a result of such Casualty will be available after Closing to the Subsidiary to effectuate the needed repairs, (2) the Subsidiary shall maintain full responsibility for all needed repairs (subject to the terms of the Lease with respect to any rights of Northrop), and (3) Purchaser shall receive a credit at Closing for any deductible amount under such insurance policies to the extent not payable by Northrop. Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to the Property and, as a result of such Casualty, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

 

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6.3 Condemnation . If after the Effective Date and prior to the Closing Seller or the Subsidiary receives notice of, or proceedings are instituted for, eminent domain with respect to the Property or any portion thereof (a “ Condemnation ”), Seller shall, promptly upon Seller or the Subsidiary receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Condemnation, Northrop is entitled to and elects to terminate its Lease with respect to such Condemnation (a “ Condemnation Tenant Termination Event ”), then Seller shall promptly upon Seller or any Affiliate receiving notice of such Condemnation Tenant Termination Event notify Purchaser of the same (a “ Condemnation Tenant Termination Notice ”). Within five (5) days after receipt of the Condemnation Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement, in which case the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Partnership Interests notwithstanding the Condemnation Tenant Termination Event. If (i) Purchaser elects to acquire the Partnership Interests notwithstanding the Condemnation Tenant Termination Event or fails to terminate this Agreement with respect to the Partnership Interests within such five (5) day period, or (ii) such Condemnation does not give rise to a Condemnation Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, the Subsidiary shall maintain the right to negotiate and otherwise deal with the condemning authority in respect of such Condemnation (subject to the terms of the Lease with respect to any rights of Northrop). Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to any Property and, as a result of such Condemnation, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

6.4 Tenant Estoppel Certificate/SNDA .

6.4.1 Purchaser and Seller acknowledge and agree that as of the Effective Date, Seller, on behalf of the Subsidiary, has sent Northrop (with a copy to Purchaser) a request for an estoppel certificate in the form approved by Purchaser (such estoppel certificate is referred to herein as the “ Tenant Estoppel Certificate ”). Purchaser acknowledges that it has approved the form of the Tenant Estoppel Certificate sent to Northrop as of the Effective Date. Seller and the Subsidiary shall not be obligated to expend any funds in connection with obtaining the Tenant Estoppel Certificate, declare any default under the Northrop Lease or commence any legal action for enforcement of the Northrop Lease in order to obtain such Tenant Estoppel Certificate. Seller and the Subsidiary shall copy Purchaser on the initial correspondence soliciting the Tenant Estoppel Certificate and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from Northrop in connection with Northrop’s execution of the Tenant Estoppel Certificate.

6.4.2 Purchaser and Seller acknowledge and agree that as of the Effective Date, Seller, on behalf of the Subsidiary, has sent an estoppel certificate addressed to the party listed on Schedule 6.4.2 (the “ Third Party Estoppel Certificate ”). Seller and the Subsidiary shall not

 

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be obligated to expend any funds in connection with obtaining any such Third Party Estoppel Certificate, declare any default under any agreement or commence any legal action for enforcement of any agreement in order to obtain any such Third Party Estoppel Certificate. Seller shall copy Purchaser on the initial correspondence soliciting the Third Party Estoppel Certificate and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the third parties in connection with the third parties’ execution of the Third Party Estoppel Certificate.

6.4.3 Purchaser and Seller acknowledge and agree that as of the Effective Date, Seller, on behalf of the Subsidiary, has sent Northrop (with a copy to Purchaser) a request for a subordination, non-disturbance and attornment agreement in a form approved by Fixed Rate Lender and/or the Floating Rate Lender (such subordination, non-disturbance and attornment agreement is referred to herein as, an “ SNDA ”). Seller and the Subsidiary shall not be obligated to expend any funds in connection with obtaining the SNDA, declare any default under the Northrop Lease or commence any legal action for enforcement of the Northrop Lease in order to obtain the SNDA. Seller and the Subsidiary shall copy Purchaser on the initial correspondence soliciting the SNDA and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from any Northrop in connection with Northrop’s execution of the SNDA.

ARTICLE 7

CLOSING

7.1 Closing . The consummation of the transaction contemplated herein (“ Closing ”) shall occur on the Closing Date at the offices of Escrow Agent (or such other location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record those closing documents which are to be recorded, and deliver originals or copies of the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.

7.2 Conditions to Parties’ Obligation to Close . In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder are conditioned upon the following:

7.2.1 Conditions to Seller’s Obligations to Close .

(1) Representations and Warranties . Purchaser’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date;

(2) Deliveries . As of the Closing Date, Purchaser shall have tendered all deliveries to be made by Purchaser at Closing;

 

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(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Purchaser that would materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement;

(4) Property . It shall be a condition to Seller’s obligation to close hereunder that neither (x) this Agreement shall have been terminated with respect to the Partnership Interests nor (y) the Other Purchase and Sale Agreements shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the Partnership Interests; it being agreed by Purchaser and Seller that a termination of this Agreement with respect to the Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale Agreement with respect to one or more of the separate sites constituting the Portfolio Properties leased by The Goodyear Tire & Rubber Company (collectively, the “ Goodyear Properties ”) or one or more separate sites constituting the Portfolio Properties leased by CEVA Freight, LLC (collectively, the “ CEVA Properties ”) shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement or (B) under this Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate this Agreement with respect to the Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under the Other Purchase and Sale Agreements which would allow Other Sellers to terminate the Other Purchase and Sale Agreements; and

(5) Simultaneous Closing . It shall be a condition to Seller’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.

7.2.2 Conditions to Purchaser’s Obligations to Close .

(1) Representations and Warranties . Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date, subject to the provisions of Sections 4.4 and 9.3. Notwithstanding Sections 4.4 and 9.3, Seller and Purchaser acknowledge

 

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and agree that Section 7.2.3 shall apply to any material change in the representations and warranties of Seller due to any Updated Property Information or changes that that are not a result of a breach by Seller or any of its covenants;

(2) Deliveries . As of the Closing Date, Seller shall have tendered and shall have caused the Subsidiary to have tendered all deliveries to be made by Seller and the Subsidiary at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller or the Subsidiary that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement;

(4) Intentionally Deleted .

(5) Occupancy/Non Bankruptcy . It shall be a condition to Purchaser’s obligations to close hereunder that (a) as of the Closing Date, Northrop shall not have terminated, or given notice of its intent to terminate, its Lease, except with respect to a Casualty Tenant Termination Event or a Condemnation Tenant Termination Event and (b) Northrop shall have not vacated, abandoned or ceased operations at the Real Property, or filed for voluntary or involuntary bankruptcy or similar protection;

(6) Closing of Fixed Rate Loan, Floating Rate Loan and Mezzanine Loan . (A) The closing of the Mezzanine Loan simultaneously with (1) the Closing and (2) the closing of the Fixed Rate Loan and the Floating Rate Loan and (B) the closing of the Fixed Rate Loan and the Floating Rate Loan on the Closing Date (unless the Fixed Rate Loan or the Floating Rate Loan fails to close as a result of (x) Purchaser’s uncured default under the Fixed Rate Term Sheet or the Floating Rate Term Sheet, as the case may be, (y) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (z) Purchaser’s failure to accept documentation for the Fixed Rate Loan or the Floating Rate Loan that is commercially reasonable for such transactions), shall be conditions to Purchaser’s obligation to close hereunder. Capitalized terms used in this Section 7.2.2(6) and not defined in this Agreement shall have the meanings ascribed to such terms in the Portfolio Purchase and Sale Agreement;

(7) Intentionally Deleted ;

(8) Title Policy and Non-Imputation Endorsement . It shall be a condition to Purchaser’s obligations to close hereunder that the Title Company shall have issued the Title Policy (in the forms of the Pro Forma Policy as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser; provided, however, Purchaser and Seller agree that in no event shall the Title Company’s failure to deliver the Title Policy in the form of

 

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the Pro Forma Policy be a failure of a condition to Purchaser’s obligation to Close if such failure to issue the Title Policy in the form of the Pro Forma Policy results from the Title Company not receiving such documents and instruments, which are (i) required by the Title Company to issue the Title Policy in the forms of the Pro Forma Policy and (ii) not required to be obtained and delivered by Seller to Purchaser, the Title Company or otherwise pursuant to the terms of this Agreement), Co-Insurance and the Non-Imputation Endorsement subject to, and in accordance with, Section 5.4;

(9) Property . It shall be a condition to obligation to close hereunder that neither (x) this Agreement shall have been terminated with respect to the Partnership Interests nor (y) the Other Purchase and Sale Agreements shall have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the Partnership Interests; it being agreed by Purchaser and Seller that a termination of this Agreement with respect to the Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the Portfolio Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement or (B) under this Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate this Agreement with respect to the Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under the Other Purchase and Sale Agreements which would allow Other Sellers to terminate the Other Purchase and Sale Agreements;

(10) Terminations . Terminations of the officers, directors and managers of the Subsidiary (the “ Terminations ”), effective immediately as of the Closing; and

(11) Simultaneous Closing . It shall be a condition to Purchaser’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.

 

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7.2.3 Failure to Satisfy Conditions . So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date (or such earlier date as is provided herein), subject to any applicable notice and cure periods provided in Sections 10.1 and 10.2, such party may, in its sole discretion either (i) subject to the limitations of Sections 7.2.1(4) and 7.2.2(9)), terminate this Agreement in its entirety by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein) and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) elect to close notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. In the event such party elects to close, notwithstanding the non-satisfaction of such condition, said party shall be deemed to have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to close had knowledge at the Closing.

7.3 Seller’s Deliveries in Escrow . As of or prior to the Closing Date, Seller shall deliver, or shall cause the delivery by the Subsidiary, as applicable, in escrow to Escrow Agent the following:

7.3.1 Assignment . An Assignment and Assumption of Partnership Interests in substantially the form of Exhibit B hereto (the “ Assignment and Assumption ”);

7.3.2 Intentionally Deleted ;

7.3.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing and transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local laws in connection with the transfer of the Partnership Interests;

7.3.4 FIRPTAs . Foreign Investment in Real Property Tax Act affidavits in the forms of Exhibit D hereto executed by iStar;

7.3.5 Authority . Evidence of the existence and authority of Seller and the Subsidiary of the authority of the persons executing documents on behalf of Seller and the Subsidiary reasonably satisfactory to First American;

7.3.6 Title Affidavits . A title affidavit in form reasonably required by First American as to the rights of tenants in occupancy, the status of mechanics’ liens and “gap” indemnities, and such other matters as the First American may reasonably require in order to issue the Title Policy and the Non-Imputation Endorsement (collectively, the “ Title Affidavits ”);

7.3.7 Additional Documents . Any additional documents that First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or the Subsidiary or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement);

 

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7.3.8 Tenant Estoppel Certificate . If received by Seller, the Tenant Estoppel Certificate, it being agreed that the failure of Seller to obtain the Tenant Estoppel Certificate shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.9 Third Party Estoppel Certificate . If received, the Third Party Estoppel Certificate, it being agreed that the failure of Seller to obtain the Third Party Estoppel Certificate shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.10 Searches . A Uniform Commercial Code Search, indicting that the partnership interests in the Subsidiary are unencumbered by an lien, encumbrance or other security interest thereon, except for liens, encumbrances or security interests in favor of GE pursuant to the GE Loan, and federal and state law searches for Seller and the Subsidiary indicating the absence of any bankruptcy proceeding, federal or state tax lien, litigation and unsatisfied judgments;

7.3.11 Good Standing Certificates . A good standing certificate dated within thirty (30) days of the Closing Date from the Secretary of State of Delaware as to the good standing of the Subsidiary in the State of Delaware;

7.3.12 Insurance Policies . Copies of all insurance policies maintained by iStar or Seller on behalf of the Subsidiary;

7.3.13 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Seller in Section 9.1 are true and accurate as of the Closing Date, subject to Section 4.4 and the first sentence of Section 9.3;

7.3.14 Updated Rent Roll . A Rent Roll updated to the Closing Date, or as close as possible;

7.3.15 SNDA . If received by Seller, the SNDA, it being agreed that the failure of Seller to obtain the SNDA shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.16 Terminations . The executed Terminations; and

7.3.17 A Past Conduct Certificate . A Past Conduct Certificate in the form agreed to by Purchaser and Seller and executed by the Subsidiary; and

7.3.18 Partnership Certificates . The original Certificate of Limited Partnership Interest of the Subsidiary issued to LP Seller and designated certificate no. 1 together with an executed original transfer power in blank and the original Certificate of General Partnership Interest of the Subsidiary issued to GP Seller and designated certificate no. 1 together with an executed original transfer power in blank.

 

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7.4 Purchaser’s Deliveries in Escrow . As of or prior to the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the following:

7.4.1 Assignment and Assumption . An executed counterpart to the Assignment and Assumption;

7.4.2 Intentionally Deleted ;

7.4.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by applicable state and local laws in connection with the transfer of the Partnership Interests;

7.4.4 Authority . Evidence of the existence, organization and authority of Purchaser and of the authority of the persons executing documents on behalf of Purchaser reasonably satisfactory to First American;

7.4.5 Additional Documents . Any additional documents that Seller, Escrow Agent or First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement); and

7.4.6 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Purchaser in Section 9.2 are true and accurate as of the Closing Date.

7.5 Closing Statements . As of or prior to the Closing Date, Seller and Purchaser shall deposit with Escrow Agent an executed closing statement with respect to the adjustments herein in the form required by Escrow Agent. Seller shall provide a draft of the same at least one week prior to the scheduled Closing Date.

7.6 Purchase Price . At or before 3:00 p.m. (Eastern Time) on the Closing Date, Purchaser shall deliver to Escrow Agent the Purchase Price plus or minus applicable prorations and any adjustment to the Purchase Price made in accordance with the terms of this Agreement, in immediate, same-day U.S. federal funds wired for credit into Escrow Agent’s escrow account, which funds must be delivered in a manner to permit Escrow Agent to deliver good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer); in the event that Escrow Agent is unable to deliver good funds to Seller or its designee prior to 4:00 p.m. (Eastern Time) on the Closing Date, then the closing statements and related prorations will be revised as necessary.

7.7 Possession . As of Closing, there shall be no change in the Subsidiary’s possession of the Property.

7.8 Delivery of Books and Records . Within ten (10) Business Days after the Closing, Seller shall deliver to the offices of Purchaser: (i) original Lease File; (ii) original Service Contracts and License Agreements, (iii) to the extent in Seller’s or the Subsidiary’s

 

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possession: (a) maintenance records and warranties; (b) plans and specifications; (c) licenses, permits and certificates of occupancy; (d) copies or originals of all books and records of account, contracts, and copies of correspondence with tenants and suppliers; (e) advertising materials; (f) booklets; and (g) keys; and (iv) the Books and Records.

7.9 Notice to Northrop . Seller and Purchaser shall each execute and Purchaser shall deliver to Northrop immediately after the Closing, a notice regarding the sale in substantially the form of Exhibit G hereto, or such other form as may be required by applicable state law. This obligation on the part of Purchaser shall survive the Closing.

ARTICLE 8

PRORATIONS, DEPOSITS, COMMISSIONS

8.1 Prorations for Taxes . To the extent tenants are required to pay real and personal ad valorem taxes (“ Taxes ”) directly under their respective Leases, Taxes will not be prorated, and accordingly, Purchaser shall look solely to the tenants under their respective Leases for payment of all Taxes. To the extent tenants are not required to pay Taxes directly under their respective Leases, then the following shall apply with respect to the proration of Taxes:

8.1.1 If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing;

8.1.2 Any additional Taxes relating to the year of Closing arising out of a change in ownership shall be assumed by Purchaser effective as of Closing and paid by Purchaser when due and payable, and Purchaser shall indemnify Seller from and against any and all such Taxes, which indemnification obligation shall survive the Closing; and

8.1.3 Purchaser and Seller shall reasonably cooperate to file all tax returns of the Subsidiary in respect of the tax year in which the Closing shall occur.

8.2 Prorations for Tenant-Paid Operating Expenses . To the extent tenants are required to pay operating costs and expenses of the Real Property (“Operating Expenses”) directly under their respective Leases, which Operating Expenses may include, without limitation, fees and assessments; prepaid expenses; obligations under Service Contracts; any assessments by private covenant; insurance; utilities; common area maintenance expenses; and other operating costs and expenses incurred in connection with the ownership, operation, maintenance and management of the Real Property, Operating Expenses will not be prorated, and accordingly, Purchaser shall look solely to the tenants under such Leases for payment of all Operating Expenses.

8.3 Prorations for Non-Tenant Paid Items . To the extent tenants are not required to pay Operating Expenses or Taxes directly under their respective Leases, but are required to escrow Operating Expenses or Taxes under their respective Leases and/or to reimburse their landlord for all or any portion of such Operating Expenses or Taxes, then the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by the Subsidiary for Purchaser’s account from and after (and including) the Closing Date and Seller’s account prior to the Closing Date:

8.3.1 Utilities . Purchaser shall take all steps necessary to post deposits with the utility companies on behalf of the Subsidiary for the period after the Closing Date. Seller shall ensure that all utility meters are read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company on behalf of the Subsidiary as of the Closing Date.

 

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8.3.2 Tenant Receivables . Rents due from tenants under Leases and from tenants or licensees under License Agreements and Operating Expenses and Taxes payable by tenants under Leases and licenses under License Agreements (collectively, “ Tenant Receivables ”) and not collected by the Subsidiary as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the basis of the period for which the same is payable and if, as and when collected, as follows:

(a) Tenant Receivables and other income received from tenants under Leases, and/or tenants or licensees under License Agreements after Closing shall be applied in the following order of priority: (1) first, to payment of the current Tenant Receivables then due for the month in which the Closing Date occurs, which amount shall be apportioned between Purchaser and Seller as of the Closing Date as set forth in Section 8.3 hereof (with Seller’s portion thereof to be delivered to Seller); (2) second, to payment of Tenant Receivables first coming due after Closing but applicable to the period of time before Closing, (collectively, “ Unbilled Tenant Receivables ”), which amount shall be delivered to Seller; (3) third, to Tenant Receivables first coming due after Closing and applicable to the period of time after Closing, which amount shall be retained by the Subsidiary; and (4) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by the Subsidiary as of Closing (collectively, “ Uncollected Delinquent Tenant Receivables ”), which amount shall be delivered to Seller. Notwithstanding the foregoing, Seller shall have the right to pursue on behalf of the Subsidiary the collection of Uncollected Delinquent Tenant Receivables for a period of six (6) months after Closing without prejudice to Seller’s rights or Purchaser’s obligations hereunder, provided, however, Seller shall have no right to cause the Subsidiary to cause any such tenant or licensee to be evicted or to exercise any other “landlord” remedy (as set forth in such tenant’s Lease or licensee’s License Agreement) against such tenant other than to sue for collection. Any sums received by the Subsidiary to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to the Subsidiary, and Purchaser shall remit to Seller any such sums received by the Subsidiary to which Seller is entitled within ten (10) Business Days after receipt thereof less reasonable, actual costs and expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period from and after the Closing Date, Seller shall hold the same in trust for the Subsidiary and remit to Purchaser that portion of the monies so received by Seller to which the Subsidiary are entitled within ten Business Days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and agrees to cause the Subsidiary to (A) bill the same when billable and (B) cooperate with Seller to determine the correct amount of operating expenses and/or taxes due. Seller shall provide Purchaser with the necessary information to bill the same when billable and cooperate with Purchaser to maximize collection of the Unbilled Tenant Receivables. The provisions of this Section 8.3.2(a) shall survive the Closing.

 

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(b) Purchaser acknowledges that the Subsidiary as the landlord under the Leases (and/or as the licensors under the License Agreements) may be collecting from tenants under the Leases (and/or licensees under the License Agreements) additional rent relating to Operating Expenses or Taxes. To the extent that any such additional rent is paid by any tenants to the landlord under the Leases (and/or by any licensees to the licensor under the License Agreements) based on an estimated payment basis (whether monthly, quarterly, or otherwise) for which a future reconciliation of actual Operating Expenses or Taxes to estimated payments of Operating Expenses or Taxes is required to be performed at the end of a reconciliation period, Purchaser and Seller shall determine prior to the Closing whether such tenants and/or licensees have, in the aggregate, made an overpayment or underpayment of additional rent relating to Operating Expenses or Taxes (such determination to be based on a comparison of reasonable estimates of actual annual Operating Expenses and Taxes to the estimated payments being made by such tenants and/or licensees). If such determination indicates that such tenants and/or licensees have made an overpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall receive a credit toward the Purchase Price in the amount of such overpayment and the Subsidiary shall retain all obligations and liabilities relating to such overpayment. If, however, such determination indicates that such tenants and/or licensees have made an underpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall cause the Subsidiary to bill the tenants for the same promptly after the Closing and remit the same to Seller as and when collected. If such review indicates that it cannot be determined as of the Closing Date whether a tenant has overpaid or underpaid its additional rent relating to Operating Expenses or Taxes, Purchaser shall cause the Subsidiary to bill the tenant for the same at the end of the reconciliation period, and any overpayment with respect to the period prior to the Closing Date shall be paid by Seller to Purchaser or any underpayment with respect to the period prior to the Closing Date, when received from the tenant, shall be paid by Purchaser to Seller. Notwithstanding anything contained herein to the contrary, to the extent Purchaser, Seller or the Subsidiary receives a check or wire transfer from any tenant in the exact amount of the item payable by such tenant or referencing the item to which the check or wire transfer relates, such check or wire transfer shall be (i) applied directly to the applicable item or (ii) if such item was previously paid by the Subsidiary during Seller’s Ownership Period, reimbursed to Seller, or if such item was paid by the Subsidiary thereafter, reimbursed to Purchaser.

8.4 Miscellaneous Prorations . Without duplication of, and to the extent not addressed by Sections 8.1, 8.2 and 8.3, all other items that are customarily subject to proration and adjustment, including without limitation, “Base Rent”, shall be prorated as of the Closing Date, it being agreed that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Partnership Interests on the Closing Date.

8.5 Leasing Costs . Seller agrees to cause the Subsidiary pay or discharge at or prior to Closing (and provide Purchaser with evidence of payment thereof), or provide Purchaser with a credit at Closing in the amount of, all leasing commissions, costs for tenant improvements, lease buyout costs, moving allowances, design allowances, legal fees and other costs, expenses and allowances incurred in order to induce a tenant to enter into a Lease or Lease renewal or extension or to induce a licensee to enter into a License Agreement (collectively, the “Leasing

 

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Costs ”) that are indicated on Schedule 9.1.5 as being payable by Seller. Purchaser agrees to cause the Subsidiary to pay all Leasing Costs indicated on Schedule 9.1.5 as being payable by Purchaser as and when they become due. Seller shall have no obligation to pay, and as of Closing the Subsidiary shall retain, the obligation to pay, all Leasing Costs payable with respect to any option to renew or option to expand that has not been exercised prior to the Effective Date, which obligation shall survive the Closing. Additionally, as of Closing, the Subsidiary shall retain all obligations for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

8.6 Closing Costs . Closing costs shall be allocated between Seller and Purchaser in accordance with Section 1.2.

8.7 Final Adjustment After Closing . If final bills are not available or cannot be issued prior to Closing for any item being prorated under Sections 8.1, 8.3 and 8.5, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice. All such rights and obligations shall survive the Closing.

8.8 Tenant Deposits . All tenant and licensee security deposits collected and not applied by the Subsidiary (and interest thereon if required by law or contract) as of the Closing Date shall be retained by the Subsidiary at Closing. As of the Closing, the Subsidiary shall retain their obligations related to tenant and licensee security deposits, but only to the extent the security deposits are retained by the Subsidiary at Closing. Notwithstanding the foregoing provisions of this Section 8.8, deposits in the form of letters of credit will not be transferred or credited at the Closing. All letters of credit will remain in the name of the Subsidiary at Closing. Purchaser and Seller shall each pay one-half (1/2) of the costs and expenses, if any, of delivering the letters of credit to Purchaser. In the event that prior to a transfer of any such letter of credit to Purchaser, Purchaser deems it advisable to cause the Subsidiary to draw on the same, Seller will cooperate in such presentation, and direct payment by virtue of any such presentation to the Subsidiary, and if Seller receives any such payment it will promptly deliver such payment in the form received and endorsed, without recourse, to Purchaser on behalf of the Subsidiary. Purchaser shall defend, indemnify and hold Seller harmless from all claims, causes of actions, actions, damages, costs, liabilities and expenses, including (without limitation) reasonable attorneys’ fees, that may arise out of any such presentation or related payment, other than by reason of any actions of Seller other than at the written direction of Purchaser. If any security deposit is held in a form other than cash or a letter of credit, for example, debt or equity securities, at Closing, such debt or equity securities shall continue to be held by the Subsidiary.

8.9 Commissions . Seller is responsible to Financial Advisor for a real estate fee at Closing in accordance with a separate agreement between Seller and Financial Advisor and at Closing Seller shall pay to Financial Advisor the entire real estate fee due under the separate agreement between Seller and Financial Advisor. Financial Advisor may share its commission with any other financial advisor or licensed broker involved in this transaction. Subject to Seller’s representations in this Section 8.9, under no circumstances shall Seller owe a commission or other compensation directly to any financial advisor, broker, agent or person

 

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other than Financial Advisor. No affiliate, subsidiary or party related in any way to Purchaser shall claim a commission or fee from Seller or Financial Advisor. Seller represents and warrants to Purchaser that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby other than Financial Advisor, and agrees to and does hereby indemnify and hold Purchaser harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Seller including Financial Advisor. Purchaser represents and warrants to Seller that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby, and agrees to and does hereby indemnify and hold Seller harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Purchaser excluding Financial Advisor. The foregoing indemnifications shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.

8.10 Accounts . At or prior to Closing, Seller shall cause all then existing accounts in the name of the Subsidiary to be closed and the proceeds therein distributed to Seller.

8.11 Tax Appeals . Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “ Pre-Closing Tax Appeals ”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller on behalf of the Subsidiary settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal on behalf of the Subsidiary pursuant to the terms of the applicable Lease. If Seller elects not to pursue on behalf of the Subsidiary any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal, unless Purchaser is required to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue on behalf the Subsidiary such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects on behalf of the Subsidiary not to pursue and which Purchaser elects or is obligated on behalf of the Subsidiary to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser and the Subsidiary, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and the Subsidiary and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closing.

 

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ARTICLE 9

REPRESENTATIONS AND WARRANTIES

9.1 Seller’s Representations and Warranties . Seller represents and warrants to Purchaser that:

9.1.1 Organization and Authority . Seller and the Subsidiary are validly existing, and in good standing in the states in which they were was formed. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause the Subsidiary to consummate the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller and the Subsidiary at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller the Subsidiary, enforceable in accordance with their terms.

9.1.2 No Conflicts . The execution, delivery and performance by Seller and the Subsidiary, as applicable, of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Seller, the Subsidiary, the Partnership Interests or any portion of the Property is bound.

9.1.3 Consents; Binding Obligations . No approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Seller or the Subsidiary, as applicable, to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller or the Subsidiary, as applicable, to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller or the Subsidiary, as applicable, are and shall be valid, legally binding obligations of and enforceable against Seller and the Subsidiary in accordance with their terms.

9.1.4 Pending Actions . Except as set forth on Schedule 9.1.4 , there is no action or proceeding pending or threatened against Seller or the Subsidiary including, but not limited to, those relating to the Partnership Interests, the Subsidiary Agreement, the Real Property, the Improvements, the Leases, the Guaranties, the Tangible Personal Property or the Intangible Personal Property.

9.1.5 Leases, Guaranties, Tenants and Guarantors . Schedule 1.1.21(2) is a true, correct and complete list of all Leases, Guaranties, tenants and guarantors in effect as of the Effective Date. Seller has delivered, or has caused the Subsidiary to deliver, or has made available to Purchaser true, correct and complete copies of the Leases and the Guaranties. To Seller’s knowledge, no tenant or guarantor of any Lease has been released or discharged, voluntarily or involuntarily, or by operation of law, from any obligation related to such Lease. To Seller’s knowledge, Seller and the Subsidiary have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of

 

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the Leases or Guaranties, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder (other than with respect to the curtain wall on the Property as referenced in that certain Curtain Wall Snap Cover Failure Investigation prepared by Wiss, Janney, Elstner Associates, Inc. dated April 23, 2010, which Purchaser has knowledge of). Without limiting the foregoing, to Seller’s knowledge, Seller and the Subsidiary have not received any notice from any tenant or guarantor under the Guaranties asserting any presently accrued defenses, offsets or disputes thereunder. The Rent Roll is true and correct in all material respects. Except as disclosed on Schedule 9.1.5 , there are no Leasing Costs or other obligations to brokers due or which will become due under any of the Leases, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement. Except as disclosed on Schedule 9.1.5 , all Leasing Costs have been fully paid and satisfied by Seller, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

9.1.6 Service Contracts and License Agreements . To Seller’s knowledge, Schedule 9.1.6 is a true, correct and complete list of all Service Contracts and License Agreements with respect to the Property. To Seller’s knowledge, Seller has delivered or caused the Subsidiary to deliver true, correct and complete copies of the Service Contracts and License Agreements to Purchaser. To Seller’s knowledge, Seller and the Subsidiary have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Service Contracts or License Agreements, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller and the Subsidiary have not received any notice from any party under the Service Contracts or License Agreements asserting any presently accrued defenses, offsets or disputes thereunder.

9.1.7 Notices from Governmental Authorities . To Seller’s knowledge, except as set forth on Schedule 9.1.7 or as may be reflected by the Property Documents or otherwise disclosed by Seller to Purchaser in writing, Seller and the Subsidiary have not received from any governmental authority during the Seller’s Ownership Period written notice of any violation of any laws, that has not been corrected.

9.1.8 Prohibited Persons and Transactions . Neither Seller nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

 

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9.1.9 Operating Statements . The Operating Statements delivered by Seller or made available to Purchaser are true and complete copies of the operating statements for the Property which Seller and the Subsidiary rely upon for the purposes of operating the Property.

9.1.10 Insurance . Schedule 9.1.10 is a true, correct and complete list of the insurance maintained by Seller and the Subsidiary with respect to the Property. Seller, and the Subsidiary have not received any written notice or request from any insurance company requesting the performance of any work or alteration with respect to the Property, which have not been fully and completely corrected. Seller and the Subsidiary have not received written notice from any insurance company concerning any defects or inadequacies in the Property, which, if not corrected, would result in the termination of insurance coverage or increase its cost.

9.1.11 Employees . There are no employees of Seller or the Subsidiary employed in connection with the use, management, maintenance or operation of the Property whose employment will continue after the Closing Date. There is no bargaining unit or union contract relating to any employees of Seller or the Subsidiary.

9.1.12 Third Party Agreements . Other than the Leases, the License Agreements, the Service Contracts, the Permitted Exceptions and the agreements set forth on Schedule 9.1.12 , there are no agreements to which Seller or the Subsidiary is party to. To Seller’s knowledge, except as set forth on Schedule 9.1.12 , Seller is not in default of, and no other party is in default of, any of its obligations under any of the agreements set forth on Schedule 9.1.12 , and there is no event which, with the giving of notice or passage of time, or both, would be a default thereunder.

9.1.13 Seller’s Representatives . Seller’s Representatives are the individuals involved in supervising Seller’s and the Subsidiary’s ownership, operation, and maintenance of the Property, have knowledge of the operation and maintenance of the Property and have reviewed the representations of Seller set forth in, and the schedules and exhibits referenced in, this Section 9.1.13.

9.1.14 Ownership . (A) LP Seller is the sole limited partner of, and owns ninety-nine percent (99%) of the partnership interests in, the Subsidiary, and (B) GP Seller is the sole general partner of, and owns one percent (1%) of the partnership interests in, the Subsidiary. Except for the liens, encumbrances, liabilities, claims, covenants and restrictions relating to that portion of the GE Loan secured by the Partnership Interests and the Property, which will be repaid, (i) LP Seller owns its interests in the Subsidiary free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same and LP Seller has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interests or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such interests, and (ii) GP Seller owns its interests in the Subsidiary free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same and GP Seller has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interests or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such.

 

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9.1.15 Intentionally Deleted .

9.1.16 Subleases . Schedule 9.1.16 is a true, correct and complete list of all subleases covering the Property acknowledged, or consented to, by Seller and such additional subleases as to which Seller has knowledge of.

9.1.17 Subsidiary Agreement . Seller has delivered to Purchaser a true, complete and accurate copies of the Subsidiary Agreement, and all amendments thereto, all of which are each in full force and effect and have not been amended or modified, and there has been no material default by Seller or the Subsidiary under the Subsidiary Agreement.

9.1.18 Subsidiary . Other than the Subsidiary, there are no corporations, partnerships, joint ventures, associations or other entities in which Seller owns, of record or beneficially, any direct or indirect equity or other interest or any right to acquire same.

9.1.19 Books and Records . The Books and Records contain accurate records of all meetings and accurately reflect all other actions taken by the members, boards of directors and all committees of the Subsidiary. Complete and accurate copies of all Books and Records of the Subsidiary have been provided by Seller to the Purchaser.

9.1.20 Bankruptcy . No petition in bankruptcy (voluntary or, to Seller’s knowledge, involuntary), assignment for the benefit of creditors or petition seeking reorganization or arrangement or other action under federal or state bankruptcy or insolvency laws is pending against or, to Seller’s knowledge, threatened against the Subsidiary.

9.1.21 Permitted Liabilities . The Subsidiary have no liabilities other than (i) those reflected on the consolidated balance sheet of each respective entity, dated as of March 31, 2010 (collectively, the “ Balance Sheets ”) and (ii) liabilities incurred in the ordinary course of the Subsidiary’s business related to the Property from April 1, 2010 through the Effective Date, which ordinary course liabilities (A) shall not materially exceed the corresponding line items for such ordinary course liabilities set forth in the Balance Sheets and (B) are subject to Purchaser’s consent rights otherwise contained in this Agreement (items (i) and (ii) of this Section 9.1.19 are referred to herein collectively as, the “ Permitted Liabilities ”), which Permitted Liabilities shall be paid prior to or at Closing except for Permitted Liabilities prorated in accordance with the terms of this Agreement.

9.1.22 Financial Statements . Seller has delivered to Purchaser true, correct and complete copies of the Financial Statements. The Financial Statements present fairly in all material respects the financial position, results of operations and cash flows of the Subsidiary as of the dates thereof and for the periods covered thereby, in accordance with GAAP applied on a consistent basis.

 

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9.1.23 Taxes and Tax Returns . The Subsidiary do not file federal, state or local tax returns. The taxable financial results of the Subsidiary are included in the consolidated federal, state and local tax returns filed by iStar.

9.1.24 Undisclosed Liabilities . There is no basis for any present action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against the Subsidiary giving rise to any liability, except for (i) liabilities set forth on the Financial Statements and (ii) the Permitted Liabilities.

9.1.25 Collective Bargaining and Employee Plans . Neither Seller nor the Subsidiary is a party to any collective bargaining or similar agreement with respect to the Property. As of the date hereof, there are no employee benefit plans or arrangements with respect to the Subsidiary.

9.2 Purchaser’s Representations and Warranties . Purchaser represents and warrants to Seller that:

9.2.1 Organization and Authority . Purchaser is validly existing as a limited liability company in good standing in the State of Delaware. Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby, and this Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2 No Conflicts . The execution, delivery and performance by Purchaser of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Purchaser is bound.

9.2.3 Consents; Binding Obligations . Except as set forth in Section 9.2.1, (a) no approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Purchaser to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Purchaser to consummate the transaction contemplated hereby, and (b) this Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms.

9.2.4 Pending Actions . There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.2.5 ERISA . (a) Purchaser is neither (i) an “employee benefit plan” (as defined in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended (“ ERISA ”)) which is subject to Title I of ERISA (an “ ERISA Plan ”), nor (ii) a “plan” (as

 

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defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) which is subject to Section 4975 of the Code (a “ Code Plan ”); (b) the assets of Purchaser do not constitute “plan assets” (as defined in Section 3(42) of ERISA) of one or more ERISA Plans or Code Plans (“ Plan Assets ”) because, at the time of the Closing, the stock of Purchaser’s parent constitutes “publicly offered securities” (as defined in 29 C.F.R. Section 2510.3-101(b)(2)), which parent owns one hundred percent (100%) of the issued and outstanding equity of Purchaser; (c) Purchaser is not using Plan Assets in the performance or discharge of its obligations under this Agreement; (d) Purchaser is not a “governmental plan” (within the meaning of Section 3(32) of ERISA) and assets of Purchaser do not constitute plan assets of one or more such plans; and (e) transactions by or with Purchaser are not in violation of state statutes applicable to Purchaser regulating investments of and fiduciary obligations with respect to governmental plans.

9.2.6 Prohibited Persons and Transactions . Neither Purchaser nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.2.7 Availability of Funds . Subject to obtaining the financing contemplated by the Fixed Rate Term Sheet, the Floating Rate Term Sheet and the Mezzanine Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.

9.3 Survival of Representations and Warranties . The representations and warranties set forth in this Article 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean the actual knowledge of the following persons: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, Carrie Crain, Vice President and the persons whose names are set forth on Schedule 9.3 (the foregoing persons are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do not have but could have obtained through further investigation or

 

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inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4 hereof and Sections 9.4 of the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Other Purchase and Sale Agreements) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate) equals or exceeds (i) $2,000,000 if such breach relates to the Property and the Partnership Interests, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $2,000,000 and for all such damage above $2,000,000 with respect to the Property and the Partnership Interests or (ii) $5,000,000 for the Property, the Acquired Properties and the Other Real Property, in which event Seller shall be liable (without duplication of any claims made pursuant to subclause (i) of this clause (3)) to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to the Property, the Acquired Properties and the Other Real Property, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement or of any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 hereof and Sections 9.4 of the Harborside Purchase and Sale Agreement and the CTL Reston Member Interest Purchase and Sale Agreement and other than Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of Other Sellers pursuant to Sections 9.3 of the Other Purchase and Sale Agreements will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Acquired Properties and (b) there shall be no threshold or limitation or limitation on survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by ARTICLE 10.

 

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9.4 Company Representations . Anything in this Agreement to the contrary notwithstanding, including Section 9.3, (i) there shall be no cap or floor on liability and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement and such subsections shall survive the Closing without limitation: Sections 9.1.1, 9.1.2, 9.1.3, 9.1.4, 9.1.14, 9.1.17, 9.1.18, 9.1.20, 9.1.22 and 9.1.23, (ii) there shall be no cap or floor on liability and the Survival Period shall be two (2) years from Closing and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement: Sections 9.1.19, 9.1.21 and 9.1.24, and (iii) the Survival Period for Section 9.1.12 shall be two (2) years from Closing and remain subject to the caps, floors, and sharing of liability as set forth in Section 9.3 (items (i), (ii) and (iii) of this Section 9.4 are referred to herein collectively as, the “ Company Representations ”), subject to the applicable statues of limitation. Seller and iStar (“ Indemnitor ”) shall each indemnify Purchaser and hold Purchaser harmless from and against, any and all claims, liabilities, damages, losses, costs or expenses (including reasonable attorneys’ fees) incurred by Purchaser arising from the Company Representations. This Section 9.4 shall survive the Closing.

ARTICLE 10

DEFAULT AND REMEDIES

10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder or under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Other Purchase and Sale Agreements, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Other Purchase and Sale Agreements and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Partnership Interests hereunder or the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Partnership Interests or the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Partnership Interests or the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTNERSHIP INTERESTS OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

 

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10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Other Sellers default in their obligations under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Other Purchase and Sale Agreements, Other Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Other Purchase and Sale Agreements and the first Sentence of Section 9.3 hereof and of the Other Purchase and Sale Agreements), and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Partnership Interests hereunder or Other Sellers fail to consummate the sale of the other Acquired Properties under the Other Purchase and Sale Agreements), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing, (b) enforce specific performance to consummate the sale of the Partnership Interests hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE MEZZANINE LOAN AND SECTION 9.4, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTNERSHIP INTERESTS OR PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3 Attorneys’ Fees . In the event either party hereto employs an attorney in connection with claims by one party against the other arising from the operation of this Agreement, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in connection with such claims.

10.4 Other Expenses . If this Agreement is terminated due to the default of a party, then the defaulting party shall pay any fees or charges due to the Title Company for preparation and/or cancellation of the Title Commitment.

ARTICLE 11

DISCLAIMERS, RELEASE AND INDEMNITY

11.1 Disclaimers By Seller . Except as expressly set forth in this Agreement and/or the Closing documents, it is understood and agreed that Seller and the Subsidiary and Seller’s and the Subsidiary’s agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Partnership Interests, the Property, including, but not

 

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limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the Property or any portion thereof, including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (m) the condition or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Property, (p) the potential for further development of the Property, (q) the merchantability of the Property or fitness of the Property for any particular purpose, (r) the truth, accuracy or completeness of the Property Documents or Updated Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Property.

11.2 Sale “As Is, Where Is” . Purchaser acknowledges and agrees that upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept the Partnership Interests and all beneficial interests arising therefrom “ AS IS, WHERE IS, WITH ALL FAULTS ,” except to the extent expressly provided otherwise in this Agreement and any document executed by Seller and delivered to Purchaser at Closing. Except as expressly set forth in this Agreement or such Closing documents, Purchaser has not relied and will not rely on, and Seller has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Partnership Interests, the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller, or any property manager, real estate broker, financial advisor, agent or third party representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Purchaser represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Partnership Interests and shall make an independent verification of the accuracy of any documents and information provided by Seller. Purchaser will conduct such inspections and investigations of the Partnership Interests and the Property as Purchaser deems necessary, including, but not limited to, the physical and environmental conditions of the Property, and shall rely upon same. Purchaser acknowledges that Seller has afforded Purchaser a full opportunity to conduct such investigations of the Partnership Interests

 

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and the Property as Purchaser deemed necessary to satisfy itself as to the Partnership Interests and the condition of the Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser hereby represents and warrants to Seller that: (a) Purchaser is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Purchaser is purchasing the Partnership Interests for business, commercial, investment or other similar purpose. Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Seller.

11.3 Seller Released from Liability . Purchaser acknowledges that it has had the opportunity to inspect the Property and observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Property and adjacent areas as Purchaser deems necessary, and, except as set forth herein or in any Closing document, Purchaser hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, arising after the Effective Date, and liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“ CERCLA ”), regarding the condition, valuation, salability or utility of the Property or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property). Except as set forth herein or in any closing documents, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property are or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property, including, without limitation, the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, arising after the Effective Date. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

 

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11.4 “ Hazardous Materials” Defined . For purposes hereof, “ Hazardous Materials ”“ means “Hazardous Material,” “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any other substances regulated because of their effect or potential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, and infectious materials.

11.5 Intentionally Deleted .

11.6 Survival . The terms and conditions of this ARTICLE 11 shall expressly survive the Closing, and shall not merge with the provisions of any closing documents.

Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Seller would not have agreed to sell the Partnership Interests to Purchaser for the Purchase Price without the disclaimers and other agreements set forth above.

ARTICLE 12

MISCELLANEOUS

12.1 Parties Bound; Assignment . This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto. Purchaser may, at Purchaser’s sole cost and expense and at no cost or expense to Seller, assign its rights under this Agreement upon the following conditions: (a) the assignee of Purchaser must be (i) an entity controlling, controlled by, or under common control with Purchaser or (ii) an entity advised by an affiliate of Purchaser’s advisor, Dividend Capital Total Advisors LLC, (b) Intentionally Deleted, (c) Intentionally Deleted, (d) the assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser shall remain primarily liable for the performance of Purchaser’s obligations, (e) a copy of the fully executed written assignment and assumption agreement shall be delivered to Seller at least five (5) Business Days prior to Closing, (f) the requirements in Section 12.17 are satisfied and (g) such assignment shall in no event delay the Closing.

12.2 Headings . The article, section, subsection, paragraph and/or other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.

12.3 Invalidity and Waiver . If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.

 

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12.4 Governing Law . This Agreement shall be governed in all respects, including validity, construction, interpretation and effect, by the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Each of Purchaser and Seller hereby (i) irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State, City and County of New York for the purpose of any action or proceeding arising out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a New York state court or federal court located in the State, City and County of New York. Each of Purchaser and Seller hereby consents to and grants any such court jurisdiction over the person of such party and over the subject matter of any such dispute and agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 12.10, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof on such party.

12.5 Survival . The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing (other than any unfulfilled closing conditions which have been waived or deemed waived by the other party) shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

12.6 Entirety and Amendments . The exclusivity obligations and covenants set forth in that certain letter of intent dated April 2, 2010 between iStar Financial Inc., on behalf of Seller, and Purchaser are hereby incorporated herein and made a part of this Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.

12.7 Time . Time is of the essence in the performance of this Agreement.

12.8 Intentionally Omitted .

12.9 No Electronic Transactions . The parties hereby acknowledge and agree this Agreement shall not be executed, entered into, altered, amended or modified by electronic means. Without limiting the generality of the foregoing, the parties hereby agree the transactions contemplated by this Agreement shall not be conducted by electronic means, except as specifically set forth in the “Notices” section of this Agreement.

12.10 Notices . All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.3. Any such notices shall, unless otherwise provided herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified and addressed to the party to be notified, with return receipt requested, (b) by overnight delivery using a nationally recognized overnight courier, (c) by

 

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personal delivery, or (d) by Portable Document Format (PDF) so long as a copy thereof is also sent by one of the other delivery methods set forth in Sections 12.10(a), (b) or (c). Notice given in accordance herewith for all permitted forms of notice other than by electronic mail, shall be effective upon the earlier to occur of actual delivery to the address of the addressee or refusal of receipt by the addressee. In no event shall this Agreement be altered, amended or modified by electronic mail or electronic record. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Notices given by counsel to the Purchaser shall be deemed given by Purchaser and notices given by counsel to the Seller shall be deemed given by Seller.

12.11 Construction . The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

12.12 Calculation of Time Periods; Business Day . Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at midnight local time in New York, New York. As used herein, the term “ Business Day ”“ means any day that is not a Saturday, Sunday or legal holiday for national banks in the City of New York, New York or Colorado.

12.13 Execution in Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.

12.14 Recordation . Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent of Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall have the remedies set forth in Section 10.1 hereof. In addition to any such remedies, Purchaser shall be obligated to execute an instrument in recordable form releasing this Agreement or memorandum or affidavit, and Purchaser’s obligations pursuant to this Section 12.14 shall survive any termination of this Agreement as a surviving obligation.

12.15 Further Assurances . In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the transfer of the Partnership Interests to Purchaser.

 

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12.16 Discharge of Obligations . The acceptance of the Partnership Interests Power by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive Closing.

12.17 ERISA . Under no circumstances shall Purchaser have the right to assign this Agreement to any person or entity owned or controlled by an “employee benefit plan” (as defined in Section 3(3) of ERISA) if Seller’s sale of the Partnership Interests to such person or entity would, in the reasonable opinion of Seller’s ERISA advisors or consultants, create or otherwise cause a “prohibited transaction” under ERISA or any other applicable law with an effect similar to that of Section 406 of ERISA including, but not limited to, Section 4975 of the Code (each such law, a “ Similar Law ”). In the event Purchaser assigns this Agreement or transfers any ownership interest in Purchaser, and such assignment or transfer would make the consummation of the transaction hereunder a “prohibited transaction” under ERISA or any Similar Law and would therefore either (a) necessitate the termination of this Agreement, or (b) cause Seller to incur liability under ERISA or such Similar Law if the transaction were consummated, then, in either case, notwithstanding any contrary provision which may be contained herein, Seller shall have the right to terminate this Agreement and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof. Anything in this Section 12.17 to the contrary notwithstanding, Seller shall have no right to terminate this Agreement under this Section 12.17 if Purchaser’s assignee expressly reaffirms in a writing addressed to Seller the representation in Section 9.2.5.

12.18 No Third Party Beneficiary . The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing, except that a tenant of the Property may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

12.19 Reporting Person . Purchaser and Seller hereby designate First American as the “reporting person” pursuant to the provisions of Section 6045(e) of the Internal Revenue Code of 1986, as amended.

12.20 Post-Closing Access . From and after the Closing, the Purchaser will, at Seller’s sole cost and expense, permit Seller and Seller’s agents and representatives access (and will permit copying of materials pertaining to the period prior to the Closing), during business hours from time to time, to the Lease Files and other Property-related information upon reasonable advance notice to the Purchaser. This Section 12.20 shall survive the Closing.

12.21 Waiver of Jury Trial . SELLER AND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS

 

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CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN SELLER AND PURCHASER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

12.22 Information and Audit Cooperation . Within 75 days after the Closing Date, Seller, at Purchaser’s sole cost and expense and at no cost or expense to Seller, shall allow Purchaser’s auditors access to the books and records of Seller relating to the operation of the Property for the two (2) year period prior to the Closing Date to enable Purchaser to comply with any financial reporting requirements applicable to Purchaser, upon at least three (3) Business Days prior written notice to Seller. In addition, Seller shall provide Purchaser’s designated independent auditors a representation letter regarding the books and records of the Property in substantially the form attached hereto as Exhibit H .

12.23 Bulk Sales Laws . Seller shall (i) comply with the bulk transfer requirements of the state in which the Property is located, (ii) keep Purchaser apprised of Seller’s compliance with such requirements and (iii) indemnify, defend and hold Purchaser harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature which arise out of the failure of Seller to so comply with such requirements.

[SIGNATURE PAGES, SCHEDULES AND EXHIBITS TO FOLLOW]

 

-46-


SIGNATURE PAGE TO AGREEMENT OF

PURCHASE AND SALE

BY AND BETWEEN

iSTAR CTL HOLDCO LLC,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below.

PURCHASER :

 

TRT ACQUISITIONS LLC , a Delaware limited liability company   
By:    DCTRT Real Estate Holdco LLC, Its Sole Member   
   By:   

Dividend Capital Total Realty Operating Partnership LP, Its Sole Member

  
          By:    Dividend Capital Total Realty Trust Inc., Its General Partner   
         By:   

/s/ GREG MORAN

  
         Name:   

Greg Moran

  
         Title:   

SVP

  
         Date:    June 25, 2010   

SELLER :

 

iSTAR NG INC., a Delaware corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date:   June 25, 2010
iSTAR NG GENPAR INC. , a Delaware corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date:   June 25, 2010

PARTNERSHIP INTERESTS PURCHASE AND SALE AGREEMENT


AGREED TO FOR PURPOSES OF SECTION 4.3.2 AND 9.4:

 

iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date:   June 25, 2010

PARTNERSHIP INTERESTS PURCHASE AND SALE AGREEMENT


LIST OF SCHEDULES

 

Schedule 1.1.1       Intentionally Deleted
Schedule 1.1.3       Intentionally Deleted
Schedule 1.1.21(2)       List of Leases, Guaranties, Tenants and Guarantors
Schedule 1.1.21(3)       List of Excluded Personal Property
Schedule 1.2       Transfer Tax Responsibility
Schedule 4.3.2       INTENTIONALLY DELETED
Schedule 6.1.4       Security Deposits
Schedule 6.4.2       Third Parties
Schedule 6.5       INTENTIONALLY DELETED
Schedule 9.1.4       Pending Actions
Schedule 9.1.5       Leasing Costs
Schedule 9.1.6       Service Contracts and License Agreements
Schedule 9.1.7       Notices from Governmental Authorities
Schedule 9.1.10       Insurance Coverages
Schedule 9.1.12       Third Party Agreements
Schedule 9.1.15       INTENTIONALLY DELETED
Schedule 9.1.16       Subleases
Schedule 9.1.21       INTENTIONALLY DELETED
Schedule 9.1.23(3)       INTENTIONALLY DELETED
Schedule 9.3       Seller’s Representatives

LIST OF EXHIBITS

 

Exhibit A       Legal Description of Land
Exhibit B       Form of Assignment and Assumption of Partnership Interests
Exhibit C       INTENTIONALLY DELETED
Exhibit D       Form of FIRPTA Certificates
Exhibit E       INTENTIONALLY DELETED
Exhibit F       INTENTIONALLY DELETED
Exhibit G       Form of Notice to Northrop
Exhibit H       Form of Audit Letter
Exhibit I       INTENTIONALLY DELETE

Exhibit 2.4

MEMBER INTEREST PURCHASE AND SALE AGREEMENT

BETWEEN

iSTAR CTL HOLDCO LLC,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

DATED: JUNE      , 2010


TABLE OF CONTENTS

 

            Page No.
ARTICLE 1 BASIC INFORMATION    1

1.1

     Certain Basic Terms    1

1.2

     Closing Costs    6

1.3

     Notice Addresses    7
ARTICLE 2 MEMBERSHIP INTERESTS    8

2.1

     Membership Interests    8
ARTICLE 3 EARNEST MONEY    8
ARTICLE 4 DUE DILIGENCE    8

4.1

     Due Diligence Materials To Be Delivered    8

4.2

     Physical Due Diligence    10

4.3

     Due Diligence/Financing Contingency Termination Rights.    11

4.4

     Updated Property Information    11

4.5

     Return of Documents and Reports    12

4.6

     Service Contracts    12

4.7

     Proprietary Information; Confidentiality    12

4.8

     No Representation or Warranty by Seller    13

4.9

     Purchaser’s Responsibilities    13

4.10

     Purchaser’s Agreement to Indemnify    13
ARTICLE 5 TITLE AND SURVEY    14

5.1

     Title Commitment    14

5.2

     Updated Survey    14

5.3

     Title Review    14

5.4

     Delivery of Title Policy and Non-Imputation Endorsement at Closing    14
ARTICLE 6 OPERATIONS AND RISK OF LOSS    15

6.1

     Ongoing Operations    15

6.2

     Casualty    17

6.3

     Condemnation    17

6.4

     Tenant Estoppel Certificate/SNDA.    18
ARTICLE 7 CLOSING    18

7.1

     Closing    18

7.2

     Conditions to Parties’ Obligation to Close    19

7.3

     Seller’s Deliveries in Escrow    23

7.4

     Purchaser’s Deliveries in Escrow    24

7.5

     Closing Statements    25

7.6

     Purchase Price    25

7.7

     Possession    25

7.8

     Delivery of Books and Records    25

7.9

     Notice to Unisys    25
ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS    25

8.1

     Prorations for Taxes    25

 

i


8.2

     Prorations for Tenant-Paid Operating Expenses    26

8.3

     Prorations for Non-Tenant Paid Items    26

8.4

     Miscellaneous Prorations    28

8.5

     Leasing Costs    28

8.6

     Closing Costs    28

8.7

     Final Adjustment After Closing    28

8.8

     Tenant Deposits    29

8.9

     Commissions    29

8.10

     Accounts    29

8.11

     Tax Appeals    30
ARTICLE 9 REPRESENTATIONS AND WARRANTIES    30

9.1

     Seller’s Representations and Warranties    30

9.2

     Purchaser’s Representations and Warranties    34

9.3

     Survival of Representations and Warranties    35

9.4

     Company Representations    37
ARTICLE 10 DEFAULT AND REMEDIES    37

10.1

     Seller’s Remedies    37

10.2

     Purchaser’s Remedies    38

10.3

     Attorneys’ Fees    38

10.4

     Other Expenses    39
ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY    39

11.1

     Disclaimers By Seller    39

11.2

     Sale “As Is, Where Is”    39

11.3

     Seller Released from Liability    40

11.4

     “Hazardous Materials” Defined    41

11.5

     Intentionally Deleted    41

11.6

     Survival    41
ARTICLE 12 MISCELLANEOUS    41

12.1

     Parties Bound; Assignment    41

12.2

     Headings    42

12.3

     Invalidity and Waiver    42

12.4

     Governing Law    42

12.5

     Survival    42

12.6

     Entirety and Amendments    42

12.7

     Time    42

12.8

     Intentionally Omitted    43

12.9

     No Electronic Transactions    43

12.10

     Notices    43

12.11

     Construction    43

12.12

     Calculation of Time Periods; Business Day    43

12.13

     Execution in Counterparts    43

12.14

     Recordation    43

12.15

     Further Assurances    44

12.16

     Discharge of Obligations    44

12.17

     ERISA    44

 

ii


12.18

     No Third Party Beneficiary    44

12.19

     Reporting Person    44

12.20

     Post-Closing Access    45

12.21

     Waiver of Jury Trial    45

12.22

     Information and Audit Cooperation    45

12.23

     Bulk Sales Laws    45

 

iii


LIST OF DEFINED TERMS

 

     Page No.

Acquired Interests

   5

Acquired Properties

   6

Agreement

   1

Assignment and Assumption

   22

Balance Sheets

   33

Books and Records

   5

Business Day

   43

Casualty

   17

Casualty Tenant Termination Event

   17

Casualty Tenant Termination Notice

   17

CERCLA

   40

CEVA Properties

   19

Closing

   18

Closing Date

   2

Code

   34

Code Plan

   34

Co-Insurance

   14

Company Representations

   37

Condemnation

   17

Condemnation Tenant Termination Event

   17

Condemnation Tenant Termination Notice

   17

Confidentiality Agreement

   2

Effective Date

   2

ERISA

   34

ERISA Plan

   34

Escrow Agent

   2

Extended Coverage

   5

Fidelity

   14

Financial Advisor

   2

Financial Statements

   9

First American

   14

Goodyear Properties

   19

Guaranties

   3

Guaranty

   3

Harborside

   5

Harborside Membership Interests

   5

Harborside Purchase and Sale Agreement

   5

Harborside Seller

   5

Hazardous Materials

   40

Improvements

   3

Indemnitor

   37

Intangible Personal Property

   4

iPortal

   8

 

iv


iStar

   2

Land

   3

Lease

   3

Lease Event

   15

Lease Files

   9

Leases

   3

Leasing Costs

   27

License Agreements

   5

Membership Interests

   5

NG LP

   2

NG Partnership Interests

   3

NG Partnership Interests Purchase and Sale Agreement

   5

Non-Imputation Endorsement

   15

OFAC

   31

Operating Expenses

   25

Operating Statements

   8

Other Purchase and Sale Agreements

   1, 6

Other Real Property

   5

Other Sellers

   5

Permitted Exceptions

   14

Permitted Liabilities

   33

Plan Assets

   34

Portfolio Property

   3

Portfolio Purchase and Sale Agreement

   3

Portfolio Seller

   3

Pre-Closing Tax Appeals

   29

Property

   3

Property Documents

   8

Property Information

   8

Purchase Price

   1

Purchaser

   1

Real Property

   3

Rent Roll

   8

Reports

   11

Seller

   1

Seller’s Ownership Period

   5

Seller’s Representatives

   35

Service Contracts

   4

Similar Law

   44

SNDA

   18

Subsidiary

   3

Subsidiary Agreement

   3

Survey

   9

Survival Period

   35

Tangible Personal Property

   4

Taxes

   25

 

v


Tenant Estoppel Certificate

   18

Tenant Receivables

   26

Termination

   22

Third Party Estoppel Certificate

   18

Title Affidavits

   22

Title Commitment

   14

Title Company

   1

Title Policy

   15

Unbilled Tenant Receivables

   26

Uncollected Delinquent Tenant Receivables

   26

Unisys

   5

Updated Property Information

   11

 

vi


MEMBER INTEREST PURCHASE AND SALE AGREEMENT

This Member Interest Purchase and Sale Agreement (this “ Agreement ”) is made and entered into by and between Purchaser and Seller.

RECITALS

A. Defined terms are indicated by initial capital letters. Defined terms shall have the meanings set forth herein, whether or not such terms are used before or after the definitions are set forth.

B. Purchaser desires to purchase the Membership Interests and Seller desires to sell the Membership Interests, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants and agreements set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as follows:

ARTICLE 1

BASIC INFORMATION

1.1 Certain Basic Terms . The following defined terms shall have the meanings set forth below:

1.1.1 “ Seller ”: iStar CTL Holdco LLC, a Delaware limited liability company.

1.1.2 “ Purchaser ”: TRT Acquisitions LLC, a Delaware limited liability company.

1.1.3 “ Purchase Price ”: $31,400,000.00; subject to adjustment as provided herein. It is acknowledged and agreed by Purchaser and Seller that the Purchase Price of the Membership Interests is only for purposes of tax reporting and calculation, accounting and allocation. In no event shall the Purchase Price of the Membership Interests be deemed or construed to reflect the sales price of the Membership Interests or the Property in a stand alone transaction.

1.1.4 “ Other Purchase and Sale Agreements ”: collectively, the Portfolio Purchase and Sale Agreement, the NG Partnership Interests Purchase and Sale Agreement and the Harborside Purchase and Sale Agreement.

1.1.5 “ Title Company ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Chicago, Illinois 60602


Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

And

Fidelity Title Insurance Company

8450 E. Crescent Parkway, Suite 410

Greenwood Village, CO 80111

Attn: Ms. Valena Bloomquist

Telephone number: (303) 244-9198

Facsimile number: (720) 489-7593

E-mail: valena.bloomquist@fnf.com

1.1.6 “ Escrow Agent ”:

First American Title Insurance Company

National Commercial Services – Chicago

30 North LaSalle Street, Suite 2700

Attn: John E. Beckstedt, Jr.

Telephone number: (312) 917-7223

Facsimile number: (888) 279-8547

E-mail: jbeckstedt@firstam.com

1.1.7 “ Financial Advisor ”: HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, LP.

1.1.8 “ Effective Date ”: The date on which this Agreement is executed by the latter to sign of Purchaser or Seller, as indicated on the signature page of this Agreement. If the execution date is left blank by either Purchaser or Seller, the Effective Date shall be the execution date inserted by the other party.

1.1.9 Intentionally Deleted .

1.1.10 Intentionally Deleted.

1.1.11 “ Closing Date ”: June 29, 2010, or such earlier date as may be agreed to in writing by Purchaser and Seller.

1.1.12 “ Confidentiality Agreement ”: The letter agreement dated March 31, 2010 between iStar Financial Inc., an affiliate of Seller (“ iStar ”), and Purchaser.

1.1.13 “ NG LP ”: iStar NG LP, a Delaware limited partnership.

1.1.14 Intentionally Deleted .

1.1.15 Intentionally Deleted .

 

-2-


1.1.16 “ Subsidiary ”: iStar CTL Sunset Hills – Reston LLC, a Delaware limited liability company, in each case, to the extent applicable.

1.1.17 “ NG Partnership Interests ” one hundred percent (100%) of the partnership interests in NG LP.

1.1.18 “ Portfolio Purchase and Sale Agreement ”: That certain Purchase and Sale Agreement between Purchaser and certain sellers a party thereto (individually or collectively as the context requires, “ Portfolio Seller ”), dated as of May 3, 2010, as amended by that certain First Amendment to Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Purchase and Sale Agreement, dated as of May 21, 2010, as further amended by that certain Third Amendment to Purchase and Sale Agreement, dated as of June 24, 2010 and as further amended by that certain Fourth Amendment to Purchase and Sale Agreement dated as of the date hereof.

1.1.19 “ Portfolio Property ”: Those certain properties described in the Portfolio Purchase and Sale Agreement.

1.1.20 “Subsidiary Agreement ”: that certain Limited Liability Company Agreement of the Subsidiary dated April 28, 2008, and any amendments thereto.

1.1.21 “ Property ”: collectively, the following property:

(1) Real Property . The land described in Exhibit A hereto (the “ Land ”), together with (a) all improvements located thereon, including, without limitation, that certain office building, but expressly excluding improvements and structures owned by any tenant or other third party pursuant to the Leases (the “ Improvements ”), (b) all right, title and interest of the Subsidiary, if any, in and to the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining thereto, including without limitation, any and all minerals and mineral rights, oil, gas, and oil and gas rights, development rights, air rights, water and water rights, wells, well rights and well permits, water and sewer taps, and sanitary or storm sewer capacity, and (c) all right, title, and interest of the Subsidiary, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the Land (the Land, together with items (a), (b) and (c) of this Section 1.1.21(1), collectively, the “ Real Property ”).

(2) Leases and Guaranties . All of the Subsidiary’s right, title and interest, without warranty except as set forth herein, in those existing leases and subleases, including any amendments to such leases and subleases made by the Subsidiary, described on Schedule 1.1.21(2) and all leases or subleases which may be made by the Subsidiary after the Effective Date and prior to Closing as permitted by this Agreement (individually a “ Lease ” and collectively the “ Leases ”), all guaranties of such Leases, including any amendments to such guaranties, described on Schedule 1.1.21(2) (individually a “ Guaranty ” and collectively the “ Guaranties ”), and all other collateral securing the Leases or Guaranties, including without limitation all security deposits and letters of credit.

 

-3-


(3) Tangible Personal Property . All of the Subsidiary’s right, title and interest, without warranty, except as set forth herein, in the equipment, machinery, furniture, furnishings, supplies and other tangible personal property, if any, owned by the Subsidiary and now or hereafter located in and used in connection with the operation, ownership or management of the Real Property, but specifically excluding any items of personal property owned or leased by any tenants at or on the Real Property and further excluding any items of personal property owned by third parties and leased to the Subsidiary (collectively, the “ Tangible Personal Property ”), which excluded items of personal property are listed on Schedule 1.1.21(3) .

(4) Intangible Personal Property . All of the Subsidiary’s right, title and interest, if any, without warranty, except as set forth herein, in all intangible personal property related to the Real Property and the Improvements, including, without limitation: all trade names and trade marks associated with the Real Property and the Improvements, including the Subsidiary’s rights and interests, if any, in the name of the Real Property; the plans and specifications and other architectural and engineering drawings for the Improvements, if any; contract rights related to the operation, ownership or management of the Real Property, including maintenance, service, construction, supply and equipment rental contracts, if any, but not including Leases or License Agreements (collectively, the “ Service Contracts ”); warranties; governmental permits, approvals and licenses, if any; and telephone exchange numbers (all of the items described in this Section 1.1.21(4) collectively referred to as the “ Intangible Personal Property ”). Tangible Personal Property and Intangible Personal Property shall not include (a) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller and the Subsidiary or any affiliate of Seller or the Subsidiary, (b) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property, Seller and/or the Subsidiary, or which are subject to a confidentiality agreement, (c) such documents, materials or information received by Seller or the Subsidiary from tenants and covered by confidentiality agreements between such tenants and Seller or the Subsidiary, except that such documents, materials or information shall be included in Tangible Personal Property if Purchaser shall have agreed in writing to be bound by the terms of such confidentiality agreements prior to Seller’s delivery of such documents, materials and information to Purchaser, and (d) any trade name, mark or other identifying material that includes the name “iStar” or any derivative thereof.

 

-4-


(5) License Agreements . All of the Subsidiary’s right, title and interest, without warranty, except as set forth herein, in and to all agreements (other than the Leases and the Guaranties), if any, for the leasing or licensing of rooftop space or equipment, cable access and other space, telecommunications equipment, equipment and facilities that are located on or within the Real Property and generate income to the Subsidiary as the owner of the Real Property, including agreements which may be made by the Subsidiary after the Effective Date and prior to Closing as permitted by this Agreement (the “ License Agreements ”).

1.1.22 “ Books and Records ”: collectively, all books and records maintained by Seller and the Subsidiary in connection with the ownership or operation of the Property or with respect to corporate matters of the Subsidiary.

1.1.23 “ Extended Coverage ”: means the deletion of exceptions 2, 3, 4 and 5 from Schedule B – Section 2 of the Title Commitment.

1.1.24 “ Seller’s Ownership Period ”: The period beginning on December 4, 2003 and continuing through the Closing Date.

1.1.25 “ Harborside Purchase and Sale Agreement ”: That certain Member Interest Purchase and Sale Agreement between Purchaser and iStar Harborside LLC, a Delaware limited liability company (“ Harborside Seller ”), dated as of May 3, 2010, as amended by that certain First Amendment to Member Interest Purchase and Sale Agreement, dated as of May 11, 2010, as further amended by that certain Second Amendment to Member Interest Purchase and Sale Agreement, dated as of May 21, 2010, as further amended by that certain Third Amendment to Member Interest Purchase and Sale Agreement, dated as of June 24, 2010 and as further amended by that certain Fourth Amendment to Member Interest Purchase and Sale Agreement dated as of the date hereof.

1.1.26 “ Harborside ”: The property commonly known as Harborside Financial Center Plaza X, Jersey City, New Jersey.

1.1.27 “ Harborside Membership Interests ”: The one hundred percent (100%) membership interests in American Financial Exchange L.L.C. owned by Harborside Seller.

1.1.28 “ Unisys ”: Unisys Corporation.

1.1.29 “ NG Partnership Interests Purchase and Sale Agreement ”: That certain Partnership Interests Purchase and Sale Agreement between Purchaser and NG Partnership Interests Seller, dated as of the date hereof relating to the purchase and sale of the NG Partnership Interests.

1.1.30 “ Membership Interests ”: One hundred percent (100%) of the membership interests in the Subsidiary.

1.1.31 “ Other Sellers ”: collectively, NG Partnership Interests Seller, Portfolio Seller and Harborside Seller.

1.1.32 “ Other Real Property ”: collectively, (a) Harborside and (b) the property commonly known as 7555 Colshire Drive, McLean, Virgina and Harborside.

 

-5-


1.1.33 “ Acquired Interests ”: collectively, the NG Partnership Interests and the Harborside Membership Interests.

1.1.34 “ Other Purchase and Sale Agreements ”: collectively, the Harborside Purchase and Sale Agreement, the Portfolio Purchase and Sale Agreement and the NG Partnership Interests Purchase and Sale Agreement.

1.1.35 “ Acquired Properties ”: collectively, the Membership Interests, the Acquired Interests and the Portfolio Property.

1.1.36 “ NG Partnership Interests Seller ”: collectively, iStar NG Inc., a Delaware corporation, and iStar NG GenPar Inc., a Delaware corporation.

1.1.37 “ Northrop ”: Northrop Grumman Systems Corporation, a Delaware corporation.

1.2 Closing Costs . Closing costs shall be allocated and paid as follows:

 

Cost

  

Responsible Party

Title Commitment required to be delivered pursuant to Section 5.1    Seller
Premium for standard form Title Policy with Extended Coverage, Co-Insurance and one-half (1/2) of the Non-Imputation Endorsement (subject to this Section 1.2 and Section 5.4) required to be delivered pursuant to Section 5.4    Seller
Premium for any upgrade of the Title Policy for additional coverage, including, without limitation, the premium for any re-insurance, and any endorsements to the Title Policy desired by Purchaser (except that Purchaser shall pay only one-half (1/2) of the premium for the Non-Imputation Endorsement), any inspection fee charged by the Title Company, tax certificates, municipal and utility lien certificates, and any other Title Company charges other than those required in connection with satisfying any liens which are not Permitted Exceptions    Purchaser

Any increase in the premium for the Title Policy attributable to obtaining

Co-Insurance as provided in Section 5.4

   Purchaser
Any costs required to cause the Title Company to issue the Title Policy with Extended Coverage    Seller
Costs of a new survey and/or any revisions, modifications or recertifications to the existing Survey.    Seller
Costs for UCC Searches    Purchaser
Recording Fees    Paid in accordance with local custom
Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or assessments    Paid in accordance with Schedule 1.2
Any escrow fee charged by Escrow Agent for conducting the Closing    Purchaser  1 / 2 Seller  1 / 2
Real Estate Fee to Financial Advisor    Seller
All other closing costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring the same.   

 

-6-


1.3 Notice Addresses . All notices required or permitted to be sent hereunder shall be sent as follows:

 

Purchaser:    TRT Acquisitions LLC    Copies to:    TRT Acquisitions LLC
   518 17 th Street, Suite 1700       518 17 th Street, Suite 1700
   Denver, CO 80202       Denver, CO 80202
Attention:   

Mr. John Blumberg

Mr. Greg Moran

      Attention: Joshua J. Widoff, Esq.
Telephone:    303-228-2200       Telephone: 303-228-2200
Facsimile:    303-577-9797       Facsimile: 303-869-4602
E-mail:    gmoran@dividendcapital.com       E-mail: jwidoff@dividendcapital.com
        

and

 

Greenberg Traurig, LLP

200 Park Avenue

New York, NY 10166

Attention: Robert J. Ivanhoe, Esq.

Telephone: 212-801-9333

Facsimile: 212-801-6400

E-mail: ivanhoer@gtlaw.com

Seller:    c/o iStar Financial Inc.    Copies to:    iStar Financial Inc.
   1114 Avenue of the Americas       1114 Avenue of the Americas
   New York, NY 10036       New York, NY 10036
   Attention: Samantha Garbus       Attn: Mary-Beth Roselle, Esq.
   Telephone: 212-930-9407       Telephone: 212-930-9481
   Facsimile: 212-930-9494       Facsimile: 212-930-9494
   E-mail: sgarbus@istarfinancial.com       E-mail: mroselle@istarfinancial.com
        

iStar Asset Services Inc.

180 Glastonbury Boulevard

Glastonbury, CT 06033

Attn: President

Telephone: 860-815-5910

Facsimile: 860-815-5901

E-mail: brubin@istarfinancial.com

        

Katten Muchin Rosenman LLP

525 West Monroe St.

Chicago, IL 60661-3693

Attn: Gregory P.L. Pierce, Esq.

Phone: 312-902-5541

Fax: 312-577-8893

Email: greg.pierce@kattenlaw.com

 

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ARTICLE 2

MEMBERSHIP INTERESTS

2.1 Membership Interests . Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Membership Interests.

ARTICLE 3

EARNEST MONEY

Purchaser and Seller acknowledge and agree (i) that Purchaser has deposited with Escrow Agent Earnest Money (as defined in the Portfolio Purchase and Sale Agreement) in the amount of $46,200,000.00, (ii) that a portion of the Earnest Money equal to the Membership Interest Earnest Money is allocated to the purchase and sale of the Membership Interests pursuant to this Agreement, and (iii) the Earnest Money, including the Membership Interest Earnest Money, shall be held and disbursed by Escrow Agent pursuant to, and in accordance with, the terms and provisions of the Portfolio Purchase and Sale Agreement. “Membership Interest Earnest Money” means the product of (1) the Earnest Money and (2) the ratio of (A) the Purchase Price hereunder to (B) the sum of the (x) Purchase Price hereunder, (y) the Purchase Price under the Portfolio Purchase and Sale Agreement and (z) the Purchase Price under the NG Partnership Interests Purchase and Sale Agreement

ARTICLE 4

DUE DILIGENCE

4.1 Due Diligence Materials To Be Delivered . Seller has delivered to Purchaser complete (to Seller’s knowledge) copies of, or made electronic copies available to Purchaser on Seller’s iPortal internet site relating to the Property and Membership Interests (“ iPortal ”), the following (the “ Property Information ,” or the “ Property Documents ”):

4.1.1 Rent Roll . A current rent roll in Seller’s standard form (“ Rent Roll ”) for the Property;

4.1.2 Financial Information . Operating statements and summaries of capital expenditures pertaining to the Property during the Seller’s Ownership Period (collectively, “ Operating Statements ”);

4.1.3 Environmental Reports . A copy of any environmental reports or environmental site assessments related to the Property prepared for the benefit of Seller or the Subsidiary (as applicable), it being acknowledged by Purchaser that Purchaser shall not be entitled to rely thereon absent an express reliance letter from the company issuing such environmental reports or environmental site assessments obtained by Purchaser at Purchaser’s sole cost and expense;

 

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4.1.4 Tax Statements . Ad valorem tax statements relating to the Property for Seller’s Ownership Period;

4.1.5 Survey . A copy of the most current survey, if any, of the Property in Seller’s possession (the “ Survey “);

4.1.6 Service Contracts . Copies of any Service Contracts for the Property;

4.1.7 Personal Property . A list of Tangible Personal Property for the Property;

4.1.8 License Agreements . Copies of any License Agreements for the Property;

4.1.9 Lease Files . The lease file for the Leases affecting the Property, including, without limitation, the Leases, any amendments thereto, the Guaranties (if applicable), any amendments thereto, any letter agreements, any assignments which are then in effect and any letters of credit which are then in effect (collectively, the “ Lease Files ”);

4.1.10 Maintenance Records and Warranties . Maintenance work orders for the Property for the 12 months preceding the Effective Date and warranties for the Property, if any, on roofs, air conditioning units, fixtures and equipment;

4.1.11 Plans and Specifications . Building plans and specifications relating to the Property, if any;

4.1.12 Licenses, Permits and Certificates of Occupancy . Licenses, permits and certificates of occupancy relating to the Property and umbrella policies related thereto;

4.1.13 Insurance Certificates . Copies of certificates evidencing the existing liability and casualty insurance coverage for the Property maintained by the Subsidiary (as applicable) and other affiliates of Seller;

4.1.14 Intentionally Deleted ;

4.1.15 Organizational Documents . The Subsidiary Agreement, all related articles, charters, certificates of formation, and registrations and minutes, and any amendments and modifications thereto;

4.1.16 Books and Records . The Books and Records; and

4.1.17 Financial Statements . Unaudited financial statements and reports of the Subsidiary in such form as compiled by Seller or the Subsidiary during Seller’s Ownership Period (collectively, the “ Financial Statements ”).

 

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Except for the Rent Roll contemplated in Section 4.1.1, Seller’s obligation to deliver the items listed in this Section 4.1 shall be limited to the extent such items are in the possession of Seller or the Subsidiary.

4.2 Physical Due Diligence . As of the Effective Date, Purchaser acknowledges and agrees that Purchaser has conducted such inspections and tests of the Property, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, as Purchaser has deemed necessary to satisfy itself as to the condition of the Property. Commencing on the Effective Date and continuing until the Closing, subject to the terms of the Leases, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting such additional reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller the greater of (i) two (2) full Business Days’ or (ii) the minimum notice period required by the applicable Leases for the Property, written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent shall not be unreasonably withheld or conditioned), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser and its contractors, agents and representatives have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury or death and property damage insurance including coverage for contractual liability and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (2) workers’ compensation and employers’ liability insurance with limits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder Seller, the Subsidiary and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. The requirement to carry the insurance specified in the preceding sentence may be satisfied through blanket or umbrella insurance policies carried by Purchaser or its affiliates. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any Seller-designated tenant representative; provided, however, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any Seller-designated tenant representative and allow Seller the opportunity to participate in such communication if Seller desires. No assurance or guaranty is afforded by Seller that any Seller-designated tenant representative will communicate with Purchaser or Purchaser’s representatives. Subject to the provisions of Section 4.7 and 4.10 hereof, Purchaser or Purchaser’s representatives may, without Seller’s consent or participation, communicate with any governmental authority for

 

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the sole purpose of gathering information regarding current zoning compliance of the Real Property and current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement. Other than as set forth in the previous sentence, Purchaser must contact Seller at least three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section 4.2, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means in person or otherwise, and includes requests for inspections or other access to the Property.

4.3 Due Diligence/Financing Contingency Termination Rights .

4.3.1 Purchaser acknowledges and agrees that as of the Effective Date Purchaser has received or had access to all Property Documents (as defined herein and in the Other Purchase and Sale Agreements) and has conducted all inspections and tests of the Property, the Acquired Properties and the Other Real Property that it considers important.

4.3.2 Purchaser intends to obtain financing for the transactions contemplated by this Agreement and the Other Purchase and Sale Agreements from (i) Fixed Rate Lender, Floating Rate Lender and Harborside Lender pursuant to the terms of the Fixed Rate Loan Term Sheet, the Floating Rate Loan Term Sheet and the Harborside Term Sheet, respectively, copies of which have been delivered to iStar and Seller, and (ii) iStar in the form of the Mezzanine Loan. iStar has agreed to provide the Mezzanine Loan on and subject to the terms and conditions of Section 4.3.2 of the Portfolio Purchase and Sale Agreement and Schedule 4.3.2 attached thereto. Capitalized terms used in this Section 4.3.2 and not defined in this Agreement shall have the meanings ascribed to such terms in the Portfolio Purchase and Sale Agreement.

4.4 Updated Property Information . From the Effective Date through the Closing Date, if and to the extent that Seller or the Subsidiary receive from an unaffiliated third-party any additional Property Information not previously provided to Purchaser, or if and to the extent that Seller or the Subsidiary receive any document, notice or correspondence from an unaffiliated third-party or otherwise obtains actual knowledge from an unaffiliated third-party source of a condition arising after the Effective Date that would render any of the representations and warranties of Seller in Section 9.1 untrue if and to the extent remade after the Effective Date, Seller shall promptly so notify Purchaser and shall make electronic copies of all such documents, notices, correspondence or other information in Seller’s or the Subsidiary’s possession (“ Updated Property Information ”) available to Purchaser on iPortal. Updated Property Information may include any information disclosed in the Tenant Estoppel Certificate, but such updated information shall remain subject to Purchaser’s rights pursuant to Section 7.2.1(1) and 7.2.3. The representations and warranties of Seller in Section 9.1 shall be deemed amended to reflect such Updated Property Information, provided that if the amendment or deemed amendment of any representation or warranty reflects a fact or circumstance that would trigger a termination, extension or other right of Purchaser under this Agreement, the amendment or deemed amendment of any representation or warranty to reflect such fact or circumstance shall not vitiate such right of Purchaser.

 

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4.5 Return of Documents and Reports . As additional consideration for the transaction contemplated herein, if Purchaser terminates this Agreement, Purchaser shall provide to Seller, if requested by Seller, promptly following the receipt of notice from Seller after the termination of this Agreement, copies of all “Reports”. “ Reports ” mean (a) written third-party reports, tests, investigations and studies that pertain to contamination of, or environmental concerns regarding, the Property delivered to Purchaser or its affiliates, and (b) all other written third party reports, investigations and studies, other than economic analyses in each case under (a) and (b) prepared for Purchaser in connection with its due diligence review of the Property, including, without limitation, any and all Reports involving structural or geological conditions, environmental, hazardous waste or hazardous substances contamination of the Property, if any. The Reports shall not include any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Purchaser, or which are subject to a confidentiality agreement. The Reports shall be delivered to Seller at no cost to Seller and without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto. Purchaser’s obligation to deliver the Reports to Seller shall survive the termination of this Agreement.

4.6 Service Contracts . On or prior to the Closing Date, Purchaser will advise Seller in writing which Service Contracts Purchaser requests that Seller or the Subsidiary terminate at or prior to Closing, provided Seller and the Subsidiary shall have no obligation to terminate any Service Contracts which by their terms cannot be terminated without penalty or payment of a fee (unless Purchaser agrees in writing to pay such fee). Seller shall deliver at Closing notices of termination of all Service Contracts that Purchaser so directs. The Subsidiary shall from and after the Closing Date continue to be bound by those Service Contracts (a) that Purchaser has elected not to have Seller or the Subsidiary terminate, and (b) for which a termination notice is delivered as of or prior to Closing but for which termination is not effective until after Closing.

4.7 Proprietary Information; Confidentiality . Purchaser agrees that it is bound by the Confidentiality Agreement as if it were a party thereto, and the Confidentiality Agreement remains in full force and effect. Notwithstanding anything to the contrary set forth in the Confidentiality Agreement, (a) each party acknowledges that the other party shall be allowed to disclose the existence of this Agreement and the contents thereof in order to comply with certain disclosure requirements relating to public companies and their affiliates and (b) Purchaser shall be allowed to disclose the existence of this Agreement, and deliver the Property Information and Updated Property Information, to third parties in connection with such third parties’ potential acquisition from Purchaser of the Membership Interests, the Property or interests therein after the Closing Date so long as such third parties have agreed in writing to be bound by the terms of the Confidentiality Agreement prior to Purchaser’s disclosure of the existence of this Agreement, and delivery of the Property Information and Updated Property Information, to such third parties. The parties shall coordinate, in advance, with respect to any such public filings and/or press releases. After the Closing there shall be no restriction as between Purchaser, on the one hand, and Seller and the Subsidiary, on the other hand, on Purchaser’s disclosure of Property Information or Updated Property Information.

 

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4.8 No Representation or Warranty by Seller . Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Documents, the Updated Property Information or the source(s) thereof. Purchaser further acknowledges that some if not all of the Property Documents and Updated Property Information were prepared by third parties other than Seller and the Subsidiary. Except as expressly set forth in this Agreement or in any of the documents delivered at the Closing, (a) Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents or Updated Property Information, or in any other written or oral communications transmitted or made available to Purchaser, (b) Purchaser shall rely solely upon its own investigation with respect to the Membership Interests and the Property, including, without limitation, their physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto, and (c) Seller and the Subsidiary have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Documents and Updated Property Information and are providing the Property Documents and Updated Property Information solely as an accommodation to Purchaser.

4.9 Purchaser’s Responsibilities . In conducting any inspections, investigations or tests of the Property, Property Documents and/or Updated Property Information, Purchaser and its agents and representatives shall: (a) not disturb the tenants or interfere with their use of the Property pursuant to their respective Leases; (b) not interfere with the operation and maintenance of the Property; (c) not damage any part of the Property or any personal property owned or held by any tenant or any third party; (d) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or any tenants or their agents, guests, invitees, contractors and employees; (e) comply with all applicable laws; (f) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Property; (g) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (h) subject to the provisions of Section 4.10, repair any damage to the Real Property resulting directly or indirectly from any such inspection or tests; and (i) not reveal or disclose prior to Closing any information obtained during the Inspection Period (as defined in the Portfolio Purchase and Sale Agreement) concerning the Property, the Property Documents and the Updated Property Information to anyone other than the Permitted Recipients (as defined in the Confidentiality Agreement), in accordance with the confidentiality standards set forth in Section 4.7 above, or except as may be otherwise required by law. Purchaser’s obligations under this Section 4.9 shall survive the termination of this Agreement.

4.10 Purchaser’s Agreement to Indemnify . Purchaser hereby agrees to indemnify, defend and hold Seller and the Subsidiary harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests permitted under this Agreement or any violation of the provisions of Sections 4.2, 4.7, and 4.9; provided, however, the indemnity shall not protect Seller and the Subsidiary from any liabilities for matters merely discovered by Purchaser (i.e., environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of Seller and the Subsidiary it being agreed by Purchaser and Seller that the mere discovery by Purchaser of such matters shall not constitute an aggravation of any pre-existing liability of Seller and the Subsidiary. Purchaser also hereby agrees to indemnify, defend and hold any tenant harmless from and against any and all claims, causes of action, damages,

 

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liabilities and expenses which such tenant may suffer or incur due to Purchaser’s breach of its obligation under Sections 4.7 and 4.9 above to maintain the confidential nature of any Property Documents, Updated Property Information or other information relative to such tenant. Purchaser’s obligations under this Section 4.10 shall survive the termination of this Agreement and shall survive the Closing.

ARTICLE 5

TITLE AND SURVEY

5.1 Title Commitment . Purchaser acknowledges that a copy of a current commitment for title insurance or a preliminary title report with respect to the Property, together with copies of all documents of record referred to therein (the “ Title Commitment ”) issued by First American on an ALTA 2006 Owner’s Form or state promulgated form has been delivered or made available to Purchaser.

5.2 Updated Survey . Purchaser has arranged, at Seller’s expense, for the preparation of a new survey or the revision, modification, or re-certification of the existing Survey as necessary in order for First American to delete the survey exception from the Title Policy.

5.3 Title Review . Seller shall have no obligation to cure title objections except liens of an ascertainable amount created by, under or through Seller or the Subsidiary, or assumed by Seller or the Subsidiary, which liens Seller shall cause to be released at or prior to Closing (with Seller having the right to apply the Purchase Price or a portion thereof for such purpose), and Seller or the Subsidiary shall deliver the Property free and clear of any such liens; provided, however, that the foregoing requirement to discharge liens shall not apply to liens on any tenant’s leasehold estate. Seller further agrees to remove any exceptions or encumbrances to title which are voluntarily created by, under or through Seller or the Subsidiary after the Effective Date without Purchaser’s consent (if requested, such consent shall not be unreasonably withheld or delayed). The term “ Permitted Exceptions ” shall mean the exceptions to title set forth in the Pro Forma Policy (as defined in the Portfolio Purchase and Sale Agreement) as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser.

5.4 Delivery of Title Policy and Non-Imputation Endorsement at Closing . The parties acknowledge that First American Title Insurance Company, National Commercial Services – Chicago (“ First American ”) and Fidelity Title Insurance Company (“ Fidelity ”) constitute the Title Company. First American shall act as the lead Title Company and underwriter and shall issue the Title Policy and the Non-Imputation Endorsement; provided, however, that Purchaser may obtain co-insurance from Fidelity in the amount of up to fifty percent (50%) of the Purchase Price of the Property in the form of a co-insurance endorsement (“ Co-Insurance ”) so long as (i) the cost of such Co-Insurance does not increase the total cost of title insurance that Seller would otherwise pay to First American if First American were insuring the full Purchase Price unless Purchaser pays for such increased cost of title insurance and (ii) the issuance of such Co-Insurance does not delay the Closing. Purchaser, at Purchaser’s sole cost and expense, may obtain re-insurance with respect to the Title Policy from such third parties as Purchaser may elect so long as obtaining such re-insurance does not delay the Closing. In the event that the Title Company does not issue at Closing, or unconditionally commit at Closing to

 

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issue, to Purchaser, (i) an owner’s title insurance policy and Co-Insurance in accordance with the Title Commitment with Extended Coverage, insuring the Subsidiary’s title interest in the Real Property in the amount of the Purchase Price, subject only to the exclusions from coverage contained in the policy and the Permitted Exceptions (the “ Title Policy ”) and (ii) a non-imputation endorsement with respect to the conveyance of the Membership Interests in the form approved for issuance in the State of Virginia (the Non-Imputation Endorsement ”), Purchaser shall have the right, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), to terminate this Agreement, in which case the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement; provided, however, if either Title Company alone is willing to deliver the Title Policy in the amount of the Purchase Price and the Non-Imputation Endorsement, Purchaser agrees to accept such Title Policy and Non-Imputation Endorsement and Purchaser shall have no right to terminate this Agreement.

ARTICLE 6

OPERATIONS AND RISK OF LOSS

6.1 Ongoing Operations . From the Effective Date through Closing:

6.1.1 Leases, Service Contracts and License Agreements . Seller will cause the Subsidiary to perform their material obligations under the Leases, Service Contracts and License Agreements unless the Subsidiary are excused from performing such obligations pursuant to such Leases, Services Contracts and License Agreements.

6.1.2 New Contracts . Except as provided in Section 6.1.4, Seller will not cause the Subsidiary to enter into any contract that will be an obligation affecting the Property subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than 30 days’ prior notice.

6.1.3 Maintenance of Improvements; Removal of Personal Property . Subject to Sections 6.2 and 6.3, Seller shall cause the Subsidiary to maintain or cause the Subsidiary to use reasonable efforts to cause the tenants under the Leases to maintain all Improvements substantially in their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent with the Subsidiary’s maintenance of the Improvements during the Subsidiary’s period of ownership. Seller will cause the Subsidiary not to remove any Tangible Personal Property except as may be required for necessary repair or replacement or with respect to items that, in Seller’s judgment are obsolete, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property.

6.1.4 Leasing; License Agreements . Seller will cause the Subsidiary not to (i) amend or terminate any existing Lease or License Agreement, (ii) consent to the assignment of any Lease or License Agreement, (iii) enter into any new Lease or new License Agreement, (iv) grant their consent, to the extent Subsidiary’s consent is required, to a sublease of the Property, a modification of a sublease, an assignment of a sublease or other item for which a consent is required under any Lease or License Agreement or (v) grant an acknowledgement with respect to a sublease of the Property, a modification of a sublease or an assignment of a sublease (the foregoing items (i), (ii), (iii), (iv) and (v) are each referred to herein as, a “ Lease Event ”) after

 

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the Effective Date and prior to the Closing Date without first (a) providing Purchaser all relevant supporting documentation, as reasonably determined by Seller, including, without limitation, financial information for the assignee, tenant, subtenant and any guarantor to the extent in Seller’s or the Subsidiary’s possession, and (b) obtaining Purchaser’s approval of such Lease Event. Purchaser shall be held to the same standard for approval as Seller or the Subsidiary, as applicable, is held to in the document giving rise to such approval, consent, or acknowledgement right, and Purchaser agrees to give Seller written notice of its approval or disapproval of a proposed Lease Event within three (3) Business Days after Purchaser’s receipt of the items in Section 6.1.4(a) and Section 6.1.4(b). If Purchaser does not respond to Seller’s request within such time period, then Purchaser will be deemed to have approved such Lease Event. So long as Purchaser has complied with the standard for review described above, Purchaser may withhold its approval in its reasonable discretion, and Seller will cause the Subsidiary not to execute or grant such Lease Event without Purchaser’s written approval.

Seller shall cause the Subsidiary not to apply any tenant or licensee security deposits on account of any alleged default by any tenant or licensee unless the Subsidiary has terminated the applicable Lease or License Agreement and obtained possession of the demised or licensed premises. All tenant and licensee security deposits collected and not applied by the Subsidiary as of the Effective Date are set forth on Schedule 6.1.4 .

6.1.5 Insurance . Seller will cause the Subsidiary not to terminate or allow any insurance maintained by the Subsidiary with respect to the Property or any umbrella coverage insurance carried by any affiliate of Seller which insures the Property to lapse unless replaced by equivalent coverage. Upon the Effective Date, Seller shall cause the Subsidiary and Seller’s affiliates to name Purchaser as an additional insured on all insurance maintained by the Subsidiary with respect to the Property and on all umbrella insurance coverage carried by any affiliate of Seller which insures the Property.

6.1.6 No Amendment . After the Effective Date, Seller shall not, and Seller shall not permit the Subsidiary, to amend the Subsidiary Agreement.

6.1.7 No Merger . Seller shall not permit the Subsidiary to merge or consolidate with or agree to merge or consolidate with, or purchase or agree to purchase all or substantially all of the assets of, or otherwise acquire, any corporation, partnership or other business organization.

6.1.8 Interests . Seller shall not permit the Subsidiary to authorize for issuance, issue, sell or delivery any additional membership interests in the Subsidiary or grant any option, warrant or other right to purchase any such membership interests. Seller shall not permit the Subsidiary to split, combine or reclassify any of the membership interests of the Subsidiary.

6.1.9 Debt . Seller shall not permit the Subsidiary to incur or become subject to, nor agree to incur, any debt for borrowed money, guaranty any indebtedness, or incur any liabilities other than and specifically excluding liabilities incurred in the ordinary course of business related to the ownership and management of the Property.

 

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6.1.10 Conditions and Obligations . To the extent performance of any obligation of Seller under this Agreement or the satisfaction of any condition of Purchaser’s obligation to close requires the performance of the Subsidiary, Seller shall cause the Subsidiary to perform or satisfy same.

6.2 Casualty . If after the Effective Date and prior to the Closing, the Property is damaged by fire or other casualty (a “ Casualty ”), Seller shall, promptly upon Seller or any of the Subsidiary receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Casualty, Unisys is entitled to and elects to terminate its Lease with respect to the Property (a “ Casualty Tenant Termination Event ”), then Seller shall promptly upon Seller or the Subsidiary receiving notice of such Casualty Tenant Termination Event notify Purchaser of the same (a “ Casualty Tenant Termination Notice ”). Within five (5) days after receipt of the Casualty Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement, in which case the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Casualty Tenant Termination Event. If (i) Purchaser elects to acquire the Membership Interests notwithstanding the Casualty Tenant Termination Event or fails to terminate this Agreement with respect to the Membership Interests within such five (5) day period, or (ii) such Casualty does not give rise to a Casualty Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, (1) Seller shall provide written confirmation that any resulting insurance proceeds (including any rent loss insurance and rent abatement insurance applicable to any period beginning with the Closing Date) due the Subsidiary or an affiliate of Seller as a result of such Casualty will be available after Closing to the Subsidiary to effectuate the needed repairs, (2) the Subsidiary shall maintain full responsibility for all needed repairs (subject to the terms of the Lease with respect to any rights of Unisys), and (3) Purchaser shall receive a credit at Closing for any deductible amount under such insurance policies to the extent not payable by Unisys. Notwithstanding anything contained herein to the contrary, if a Casualty shall occur to the Property and, as a result of such Casualty, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

6.3 Condemnation . If after the Effective Date and prior to the Closing, Seller or the Subsidiary receive notice of, or proceedings are instituted for, eminent domain with respect to the Property or any portion thereof (a “ Condemnation ”), Seller shall, promptly upon Seller or the Subsidiary receiving actual knowledge thereof, notify Purchaser of the same. If, as a result of such Condemnation, Unisys is entitled to and elects to terminate its Lease with respect to such Condemnation (a “ Condemnation Tenant Termination Event ”), then Seller shall promptly upon Seller or any Affiliate receiving notice of such Condemnation Tenant Termination Event notify Purchaser of the same (a “ Condemnation Tenant Termination Notice ”). Within five (5) days after receipt of the Condemnation Tenant Termination Notice (but in no event later than the Closing Date), Purchaser shall notify Seller in writing of Purchaser’s election to either (i) subject to the limitations of Section 7.2.1(4) and 7.2.2(9), terminate this Agreement, in which case the

 

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parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) to acquire the Membership Interests notwithstanding the Condemnation Tenant Termination Event. If (i) Purchaser elects to acquire the Membership Interests notwithstanding the Condemnation Tenant Termination Event or fails to terminate this Agreement with respect to the Membership Interests within such five (5) day period, or (ii) such Condemnation does not give rise to a Condemnation Tenant Termination Event, then Purchaser shall proceed to Closing, and as of Closing, the Subsidiary shall maintain the right to negotiate and otherwise deal with the condemning authority in respect of such Condemnation (subject to the terms of the Lease with respect to any rights of Unisys). Notwithstanding anything contained herein to the contrary, if a Condemnation shall occur to any Property and, as a result of such Condemnation, the lender providing the Fixed Rate Loan or the Floating Rate Loan will not close the Fixed Rate Loan or the Floating Rate Loan, as applicable, with respect to such Property, then, subject to the limitations of Sections 7.2.1(4) and 7.2.2(9), this Agreement shall automatically terminate, in which case the parties hereto shall have no further right or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

6.4 Tenant Estoppel Certificate/SNDA .

6.4.1 Purchaser acknowledges that Unisys has executed and delivered to Seller a tenant estoppel certificate (such tenant estoppel certificate is referred to herein as, the “ Tenant Estoppel Certificate ”) in the form approved by Purchaser, Fixed Rate Lender and/or Floating Rate Lender (as such terms are defined in the Portfolio Purchase and Sale Agreement).

6.4.2 Purchaser and Seller acknowledge and agree that as of the Effective Date, Seller, on behalf of the Subsidiary, has sent an estoppel certificate addressed to the party listed on Schedule 6.4.2 (the “ Third Party Estoppel Certificate ”). Seller and the Subsidiary shall not be obligated to expend any funds in connection with obtaining any such Third Party Estoppel Certificate, declare any default under any agreement or commence any legal action for enforcement of any agreement in order to obtain any such Third Party Estoppel Certificate. Seller shall copy Purchaser on the initial correspondence soliciting the Third Party Estoppel Certificate and shall use commercially reasonable efforts to forward to Purchaser any written communications, including, without limitation, letters, memorandums, e-mails, comments and conditions, received from the third parties in connection with the third parties’ execution of the Third Party Estoppel Certificate.

6.4.3 Purchaser acknowledges that Unisys has executed and delivered to Seller a subordination, non-disturbance and attornment agreement (such subordination, non-disturbance and attornment agreement is referred to herein as, the “ SNDA “) in the form approved by Purchaser, Fixed Rate Lender and/or Floating Rate Lender.

ARTICLE 7

CLOSING

7.1 Closing . The consummation of the transaction contemplated herein (“ Closing ”) shall occur on the Closing Date at the offices of Escrow Agent (or such other location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held by

 

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Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to immediately record those closing documents which are to be recorded, and deliver originals or copies of the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.

7.2 Conditions to Parties’ Obligation to Close . In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder are conditioned upon the following:

7.2.1 Conditions to Seller’s Obligations to Close .

(1) Representations and Warranties . Purchaser’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date;

(2) Deliveries . As of the Closing Date, Purchaser shall have tendered all deliveries to be made by Purchaser at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Purchaser that would materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement;

(4) Property . It shall be a condition to Seller’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Harborside Purchase and Sale Agreement and the Portfolio Purchase and Sale shall not have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale Agreement with respect to one or more of the separate sites constituting the Portfolio Properties leased by The Goodyear Tire & Rubber Company (collectively, the “ Goodyear Properties ”) or one or more separate sites constituting the Portfolio Properties leased by CEVA Freight, LLC (collectively, the “ CEVA Properties ”) shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the

 

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bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the Portfolio Purchase and Sale Agreement and the NG Partnership Interests Purchase and Sale Agreement or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Harborside Purchase and Sale Agreement and the Portfolio Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Harborside Seller to terminate the Harborside Purchase and Sale Agreement and Portfolio Seller to terminate the Portfolio Purchase and Sale Agreement; and

(5) Simultaneous Closing . It shall be a condition to Seller’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.

7.2.2 Conditions to Purchaser’s Obligations to Close .

(1) Representations and Warranties . Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Effective Date and the Closing Date, subject to the provisions of Sections 4.4 and 9.3. Notwithstanding Sections 4.4 and 9.3, Seller and Purchaser acknowledge and agree that Section 7.2.3 shall apply to any material change in the representations and warranties of Seller due to any Updated Property Information or changes that that are not a result of a breach by Seller or any of its covenants;

(2) Deliveries . As of the Closing Date, Seller shall have tendered and shall have caused the Subsidiary to have tendered all deliveries to be made by Seller and the Subsidiary at Closing;

(3) Actions, Suits, etc . There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller or the Subsidiary that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement;

(4) Intentionally Deleted .

(5) Occupancy/Non Bankruptcy . It shall be a condition to Purchaser’s obligations to close hereunder that (a) as of the Closing Date, Unisys shall not have terminated, or given notice of its intent to terminate, its Lease, except with respect to a Casualty Tenant Termination Event or a Condemnation Tenant Termination Event and (b) Unisys shall have not vacated, abandoned or ceased operations at the Real Property, or filed for voluntary or involuntary bankruptcy or similar protection;

 

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(6) Closing of Fixed Rate Loan, Floating Rate Loan and Mezzanine Loan . (A) The closing of the Mezzanine Loan simultaneously with (1) the Closing and (2) the closing of the Fixed Rate Loan and the Floating Rate Loan and (B) the closing of the Fixed Rate Loan and the Floating Rate Loan on the Closing Date (unless the Fixed Rate Loan or the Floating Rate Loan fails to close as a result of (x) Purchaser’s uncured default under the Fixed Rate Term Sheet or the Floating Rate Term Sheet, as the case may be, (y) the failure of one or more conditions to close which are within Purchaser’s reasonable control to satisfy, or (z) Purchaser’s failure to accept documentation for the Fixed Rate Loan or the Floating Rate Loan that is commercially reasonable for such transactions), shall be conditions to Purchaser’s obligation to close hereunder. Capitalized terms used in this Section 7.2.2(6) and not defined in this Agreement shall have the meanings ascribed to such terms in the Portfolio Purchase and Sale Agreement;

(7) Intentionally Deleted ;

(8) Title Policy and Non-Imputation Endorsement . It shall be a condition to Purchaser’s obligations to close hereunder that the Title Company shall have issued the Title Policy (in the form of the Pro Forma Policy as updated by the Title Company as a result of (i) any actions taken by Seller which are expressly permitted by the terms of this Agreement or (ii) any acts or failure to act taken by Purchaser; provided, however, Purchaser and Seller agree that in no event shall the Title Company’s failure to deliver the Title Policy in the form of the Pro Forma Policy be a failure of a condition to Purchaser’s obligation to Close if such failure to issue the Title Policy in the form of the Pro Forma Policy results from the Title Company not receiving such documents and instruments, which are (i) required by the Title Company to issue the Title Policy in the form of the Pro Forma Policy and (ii) not required to be obtained and delivered by Seller to Purchaser, the Title Company or otherwise pursuant to the terms of this Agreement), Co-Insurance and the Non-Imputation Endorsement subject to, and in accordance with, Section 5.4;

(9) Property . It shall be a condition to Purchaser’s obligation to close hereunder that neither (x) the NG Partnership Interests Purchase and Sale Agreement shall have been terminated with respect to the NG Partnership Interests nor (y) this Agreement, the Harborside Purchase and Sale Agreement and the Portfolio Purchase and Sale shall not have been terminated with respect to more than two (2) of the Acquired Properties (exclusive of the NG Partnership Interests; it being agreed by Purchaser and Seller that a termination of the NG Partnership Interests Purchase and Sale Agreement with respect to the NG Partnership Interests is addressed in the foregoing clause (x) and that the two (2) Acquired Properties referenced in the foregoing clause (y) shall not include the NG Partnership Interests for purposes of the application of the foregoing clause (y)) (it being understood that a termination of the Portfolio Purchase and Sale

 

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Agreement with respect to one or more of the separate sites constituting the Goodyear Properties or one or more separate sites constituting the CEVA Properties shall be deemed in both cases to be a termination of the Portfolio Purchase and Sale Agreement with respect to only one Portfolio Property notwithstanding the Lease with The Goodyear Tire & Rubber Company and the Lease with CEVA Freight, LLC cover multiple Portfolio Properties). For clarification, the parties agree that it is possible for a closing condition (A) under the Harborside Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Schwab) which would allow Purchaser not to close and to terminate with respect to the Harborside Membership Interests but proceed to closing under this Agreement, the Portfolio Purchase and Sale Agreement and the NG Partnership Interests Purchase and Sale Agreement or (B) under the NG Partnership Interests Purchase and Sale Agreement not to be satisfied (for example, the bankruptcy of Northrop) which would allow Purchaser not to close and to terminate with respect to the NG Partnership Interests and, as a result of such termination, there would be a failure of a condition to close under this Agreement, the Harborside Purchase and Sale Agreement and the Portfolio Purchase and Sale Agreement which would allow Seller to terminate this Agreement, Harborside Seller to terminate the Harborside Purchase and Sale Agreement and Portfolio Seller to terminate the Portfolio Purchase and Sale Agreement;

(10) Termination . A termination of the officers, directors and managers of the Subsidiary executed by Seller (the “ Termination ”), effective immediately as of the Closing; and

(11) Simultaneous Closing . It shall be a condition to Purchaser’s obligation to close hereunder that the Closing of the transaction contemplated by this Agreement occur simultaneously with the closing of the transactions contemplated by the Other Purchase and Sale Agreements.

7.2.3 Failure to Satisfy Conditions . So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date (or such earlier date as is provided herein), subject to any applicable notice and cure periods provided in Sections 10.1 and 10.2, such party may, in its sole discretion either (i) subject to the limitations of Sections 7.2.1(4) and 7.2.2(9)), terminate this Agreement in its entirety by delivering written notice to the other party and Escrow Agent on or before the Closing Date (or such earlier date as is provided herein) and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof, or (ii) elect to close notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. In the event such party elects to close, notwithstanding the non-satisfaction of such condition, said party shall be deemed to have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to close had knowledge at the Closing.

 

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7.3 Seller’s Deliveries in Escrow . As of or prior to the Closing Date, Seller shall deliver, or shall cause the delivery by each Subsidiary, as applicable, in escrow to Escrow Agent the following:

7.3.1 Assignment and Assumption of Membership Interests . An assignment and assumption of membership interests in substantially the form of Exhibit B hereto (the “ Assignment and Assumption ”);

7.3.2 Intentionally Deleted ;

7.3.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing and transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local laws in connection with the transfer of the Membership Interests;

7.3.4 FIRPTA . A Foreign Investment in Real Property Tax Act affidavit in the form of Exhibit D hereto executed by iStar;

7.3.5 Authority . Evidence of the existence and authority of Seller and the Subsidiary of the authority of the persons executing documents on behalf of Seller and the Subsidiary reasonably satisfactory to First American;

7.3.6 Title Affidavits . A title affidavit in form reasonably required by First American as to the rights of tenants in occupancy, the status of mechanics’ liens and “gap” indemnities, and such other matters as the First American may reasonably require in order to issue the Title Policy and the Non-Imputation Endorsement (collectively, the “ Title Affidavits ”);

7.3.7 Additional Documents . Any additional documents that First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or the Subsidiary or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement);

7.3.8 Tenant Estoppel Certificate . If received by Seller, the Tenant Estoppel Certificate, it being agreed that the failure of Seller to obtain the Tenant Estoppel Certificate shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.9 Third Party Estoppel Certificate . If received, the Third Party Estoppel Certificate, it being agreed that the failure of Seller to obtain the Third Party Estoppel Certificate shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.10 Searches . A Uniform Commercial Code Search, indicting that the membership interests in the Subsidiary are unencumbered by an lien, encumbrance or other security interest thereon, except for liens, encumbrances or security interests in favor of GE pursuant to the GE Loan, and federal and state law searches for Seller and the Subsidiary indicating the absence of any bankruptcy proceeding, federal or state tax lien, litigation and unsatisfied judgments;

 

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7.3.11 Good Standing Certificates . A good standing certificate dated within thirty (30) days of the Closing Date from the Secretary of State of Delaware as to the good standing of the Subsidiary in the State of Delaware;

7.3.12 Insurance Policies . Copies of all insurance policies maintained by iStar or Seller on behalf of the Subsidiary;

7.3.13 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Seller in Section 9.1 are true and accurate as of the Closing Date, subject to Section 4.4 and the first sentence of Section 9.3;

7.3.14 Updated Rent Roll . A Rent Roll updated to the Closing Date, or as close as possible;

7.3.15 SNDA . If received by Seller, the SNDA, it being agreed that the failure of Seller to obtain the SNDA shall not (i) be a breach or default by Seller hereunder, (ii) constitute grounds for Purchaser to delay the Closing or (iii) give rise to a reduction of the Purchase Price;

7.3.16 Termination . The executed Termination;

7.3.17 A Past Conduct Certificate . A Past Conduct Certificate in the form agreed to by Purchaser and Seller and executed by the Subsidiary; and

7.3.18 Membership Certificate . The original Certificate of Membership Interest of the Subsidiary issued to Seller and designated certificate no. 1 together with an executed original Irrevocable Stock Power in blank.

7.4 Purchaser’s Deliveries in Escrow . As of or prior to the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the following:

7.4.1 Assignment and Assumption . An executed counterpart to the Assignment and Assumption;

7.4.2 Intentionally Deleted ;

7.4.3 Conveyancing or Transfer Tax Forms or Returns . Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by applicable state and local laws in connection with the transfer of the Membership Interests;

7.4.4 Authority . Evidence of the existence, organization and authority of Purchaser and of the authority of the persons executing documents on behalf of Purchaser reasonably satisfactory to First American;

 

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7.4.5 Additional Documents . Any additional documents that Seller, Escrow Agent or First American may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement); and

7.4.6 Bringdown Certificate . A certificate confirming that all of the representations and warranties of Purchaser in Section 9.2 are true and accurate as of the Closing Date.

7.5 Closing Statements . As of or prior to the Closing Date, Seller and Purchaser shall deposit with Escrow Agent an executed closing statement with respect to the adjustments herein in the form required by Escrow Agent. Seller shall provide a draft of the same at least one week prior to the scheduled Closing Date.

7.6 Purchase Price . At or before 3:00 p.m. (Eastern Time) on the Closing Date, Purchaser shall deliver to Escrow Agent the Purchase Price plus or minus applicable prorations and any adjustment to the Purchase Price made in accordance with the terms of this Agreement, in immediate, same-day U.S. federal funds wired for credit into Escrow Agent’s escrow account, which funds must be delivered in a manner to permit Escrow Agent to deliver good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer); in the event that Escrow Agent is unable to deliver good funds to Seller or its designee prior to 4:00 p.m. (Eastern Time) on the Closing Date, then the closing statements and related prorations will be revised as necessary.

7.7 Possession . As of Closing, there shall be no change in the Subsidiary’s possession of the Property.

7.8 Delivery of Books and Records . Within ten (10) Business Days after the Closing, Seller shall deliver to the offices of Purchaser: (i) original Lease File; (ii) original Service Contracts and License Agreements, (iii) to the extent in Seller’s or the Subsidiary’s possession: (a) maintenance records and warranties; (b) plans and specifications; (c) licenses, permits and certificates of occupancy; (d) copies or originals of all books and records of account, contracts, and copies of correspondence with tenants and suppliers; (e) advertising materials; (f) booklets; and (g) keys; and (iv) the Books and Records.

7.9 Notice to Unisys . Seller and Purchaser shall each execute and Purchaser shall deliver to Unisys immediately after the Closing, a notice regarding the sale in substantially the form of Exhibit G hereto, or such other form as may be required by applicable state law. This obligation on the part of Purchaser shall survive the Closing.

ARTICLE 8

PRORATIONS, DEPOSITS, COMMISSIONS

8.1 Prorations for Taxes . To the extent tenants are required to pay real and personal ad valorem taxes (“ Taxes ”) directly under their respective Leases, Taxes will not be prorated, and accordingly, Purchaser shall look solely to the tenants under their respective Leases for payment of all Taxes. To the extent tenants are not required to pay Taxes directly under their respective Leases, then the following shall apply with respect to the proration of Taxes:

8.1.1 If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing;

 

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8.1.2 Any additional Taxes relating to the year of Closing arising out of a change in ownership shall be assumed by Purchaser effective as of Closing and paid by Purchaser when due and payable, and Purchaser shall indemnify Seller from and against any and all such Taxes, which indemnification obligation shall survive the Closing; and

8.1.3 Purchaser and Seller shall reasonably cooperate to file all tax returns of the Subsidiary in respect of the tax year in which the Closing shall occur.

8.2 Prorations for Tenant-Paid Operating Expenses . To the extent tenants are required to pay operating costs and expenses of the Real Property (“ Operating Expenses ”) directly under their respective Leases, which Operating Expenses may include, without limitation, fees and assessments; prepaid expenses; obligations under Service Contracts; any assessments by private covenant; insurance; utilities; common area maintenance expenses; and other operating costs and expenses incurred in connection with the ownership, operation, maintenance and management of the Real Property, Operating Expenses will not be prorated, and accordingly, Purchaser shall look solely to the tenants under such Leases for payment of all Operating Expenses.

8.3 Prorations for Non-Tenant Paid Items . To the extent tenants are not required to pay Operating Expenses or Taxes directly under their respective Leases, but are required to escrow Operating Expenses or Taxes under their respective Leases and/or to reimburse their landlord for all or any portion of such Operating Expenses or Taxes, then the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by the Subsidiary for Purchaser’s account from and after (and including) the Closing Date and Seller’s account prior to the Closing Date:

8.3.1 Utilities . Purchaser shall take all steps necessary to post deposits with the utility companies on behalf of the Subsidiary for the period after the Closing Date. Seller shall ensure that all utility meters are read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company on behalf of the Subsidiary as of the Closing Date.

8.3.2 Tenant Receivables . Rents due from tenants under Leases and from tenants or licensees under License Agreements and Operating Expenses and Taxes payable by tenants under Leases and licenses under License Agreements (collectively, “ Tenant Receivables ”) and not collected by the Subsidiary as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the basis of the period for which the same is payable and if, as and when collected, as follows:

(a) Tenant Receivables and other income received from tenants under Leases, and/or tenants or licensees under License Agreements after Closing shall be applied in the following order of priority: (1) first, to payment of the current Tenant Receivables then due for the month in which the Closing Date occurs, which amount shall be apportioned between Purchaser and Seller as of the Closing Date as set forth in Section 8.3 hereof (with Seller’s portion thereof to be delivered to Seller); (2) second, to payment

 

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of Tenant Receivables first coming due after Closing but applicable to the period of time before Closing, (collectively, “ Unbilled Tenant Receivables ”), which amount shall be delivered to Seller; (3) third, to Tenant Receivables first coming due after Closing and applicable to the period of time after Closing, which amount shall be retained by the Subsidiary; and (4) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by the Subsidiary as of Closing (collectively, “ Uncollected Delinquent Tenant Receivables ”), which amount shall be delivered to Seller. Notwithstanding the foregoing, Seller shall have the right to pursue on behalf of the Subsidiary the collection of Uncollected Delinquent Tenant Receivables for a period of six (6) months after Closing without prejudice to Seller’s rights or Purchaser’s obligations hereunder, provided, however, Seller shall have no right to cause the Subsidiary to cause any such tenant or licensee to be evicted or to exercise any other “landlord” remedy (as set forth in such tenant’s Lease or licensee’s License Agreement) against such tenant other than to sue for collection. Any sums received by the Subsidiary to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to the Subsidiary, and Purchaser shall remit to Seller any such sums received by the Subsidiary to which Seller is entitled within ten (10) Business Days after receipt thereof less reasonable, actual costs and expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period from and after the Closing Date, Seller shall hold the same in trust for the Subsidiary and remit to Purchaser that portion of the monies so received by Seller to which the Subsidiary are entitled within ten Business Days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and agrees to cause the Subsidiary to (A) bill the same when billable and (B) cooperate with Seller to determine the correct amount of operating expenses and/or taxes due. Seller shall provide Purchaser with the necessary information to bill the same when billable and cooperate with Purchaser to maximize collection of the Unbilled Tenant Receivables. The provisions of this Section 8.3.2(a) shall survive the Closing.

(b) Purchaser acknowledges that the Subsidiary as the landlord under the Leases (and/or as the licensors under the License Agreements) may be collecting from tenants under the Leases (and/or licensees under the License Agreements) additional rent relating to Operating Expenses or Taxes. To the extent that any such additional rent is paid by any tenants to the landlord under the Leases (and/or by any licensees to the licensor under the License Agreements) based on an estimated payment basis (whether monthly, quarterly, or otherwise) for which a future reconciliation of actual Operating Expenses or Taxes to estimated payments of Operating Expenses or Taxes is required to be performed at the end of a reconciliation period, Purchaser and Seller shall determine prior to the Closing whether such tenants and/or licensees have, in the aggregate, made an overpayment or underpayment of additional rent relating to Operating Expenses or Taxes (such determination to be based on a comparison of reasonable estimates of actual annual Operating Expenses and Taxes to the estimated payments being made by such tenants and/or licensees). If such determination indicates that such tenants and/or licensees have made an overpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall receive a credit toward the Purchase Price in the amount of such overpayment and the Subsidiary shall retain all obligations and liabilities relating to such

 

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overpayment. If, however, such determination indicates that such tenants and/or licensees have made an underpayment of additional rent relating to Operating Expenses or Taxes, Purchaser shall cause the Subsidiary to bill the tenants for the same promptly after the Closing and remit the same to Seller as and when collected. If such review indicates that it cannot be determined as of the Closing Date whether a tenant has overpaid or underpaid its additional rent relating to Operating Expenses or Taxes, Purchaser shall cause the Subsidiary to bill the tenant for the same at the end of the reconciliation period, and any overpayment with respect to the period prior to the Closing Date shall be paid by Seller to Purchaser or any underpayment with respect to the period prior to the Closing Date, when received from the tenant, shall be paid by Purchaser to Seller. Notwithstanding anything contained herein to the contrary, to the extent Purchaser, Seller or the Subsidiary receive a check or wire transfer from any tenant in the exact amount of the item payable by such tenant or referencing the item to which the check or wire transfer relates, such check or wire transfer shall be (i) applied directly to the applicable item or (ii) if such item was previously paid by the Subsidiary during Seller’s Ownership Period, reimbursed to Seller, or if such item was paid by the Subsidiary thereafter, reimbursed to Purchaser.

8.4 Miscellaneous Prorations . Without duplication of, and to the extent not addressed by Sections 8.1, 8.2 and 8.3, all other items that are customarily subject to proration and adjustment, including without limitation, “Base Rent”, shall be prorated as of the Closing Date, it being agreed that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Membership Interests on the Closing Date.

8.5 Leasing Costs . Seller agrees to cause the Subsidiary pay or discharge at or prior to Closing (and provide Purchaser with evidence of payment thereof), or provide Purchaser with a credit at Closing in the amount of, all leasing commissions, costs for tenant improvements, lease buyout costs, moving allowances, design allowances, legal fees and other costs, expenses and allowances incurred in order to induce a tenant to enter into a Lease or Lease renewal or extension or to induce a licensee to enter into a License Agreement (collectively, the “ Leasing Costs ”) that are indicated on Schedule 9.1.5 as being payable by Seller. Purchaser agrees to cause the Subsidiary to pay all Leasing Costs indicated on Schedule 9.1.5 as being payable by Purchaser as and when they become due. Seller shall have no obligation to pay, and as of Closing the Subsidiary shall retain, the obligation to pay, all Leasing Costs payable with respect to any option to renew or option to expand that has not been exercised prior to the Effective Date, which obligation shall survive the Closing. Additionally, as of Closing, the Subsidiary shall retain all obligations for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

8.6 Closing Costs . Closing costs shall be allocated between Seller and Purchaser in accordance with Section 1.2.

8.7 Final Adjustment After Closing . If final bills are not available or cannot be issued prior to Closing for any item being prorated under Sections 8.1, 8.3 and 8.5, then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice. All such rights and obligations shall survive the Closing.

 

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8.8 Tenant Deposits . All tenant and licensee security deposits collected and not applied by the Subsidiary (and interest thereon if required by law or contract) as of the Closing Date shall be retained by the Subsidiary at Closing. As of the Closing, the Subsidiary shall retain their obligations related to tenant and licensee security deposits, but only to the extent the security deposits are retained by the Subsidiary at Closing. Notwithstanding the foregoing provisions of this Section 8.8, deposits in the form of letters of credit will not be transferred or credited at the Closing. All letters of credit will remain in the name of the Subsidiary at Closing. Purchaser and Seller shall each pay one-half (1/2) of the costs and expenses, if any, of delivering the letters of credit to Purchaser. In the event that prior to a transfer of any such letter of credit to Purchaser, Purchaser deems it advisable to cause the Subsidiary to draw on the same, Seller will cooperate in such presentation, and direct payment by virtue of any such presentation to the Subsidiary, and if Seller receives any such payment it will promptly deliver such payment in the form received and endorsed, without recourse, to Purchaser on behalf of the Subsidiary. Purchaser shall defend, indemnify and hold Seller harmless from all claims, causes of actions, actions, damages, costs, liabilities and expenses, including (without limitation) reasonable attorneys’ fees, that may arise out of any such presentation or related payment, other than by reason of any actions of Seller other than at the written direction of Purchaser. If any security deposit is held in a form other than cash or a letter of credit, for example, debt or equity securities, at Closing, such debt or equity securities shall continue to be held by the Subsidiary.

8.9 Commissions . Seller is responsible to Financial Advisor for a real estate fee at Closing in accordance with a separate agreement between Seller and Financial Advisor and at Closing Seller shall pay to Financial Advisor the entire real estate fee due under the separate agreement between Seller and Financial Advisor. Financial Advisor may share its commission with any other financial advisor or licensed broker involved in this transaction. Subject to Seller’s representations in this Section 8.9, under no circumstances shall Seller owe a commission or other compensation directly to any financial advisor, broker, agent or person other than Financial Advisor. No affiliate, subsidiary or party related in any way to Purchaser shall claim a commission or fee from Seller or Financial Advisor. Seller represents and warrants to Purchaser that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby other than Financial Advisor, and agrees to and does hereby indemnify and hold Purchaser harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Seller including Financial Advisor. Purchaser represents and warrants to Seller that no real estate brokerage commission or real estate fee is payable to any person or entity in connection with the transaction contemplated hereby, and agrees to and does hereby indemnify and hold Seller harmless against the payment of any commission or real estate fee to any other person or entity claiming by, through or under Purchaser excluding Financial Advisor. The foregoing indemnifications shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.

8.10 Accounts . At or prior to Closing, Seller shall cause all then existing accounts in the name of the Subsidiary to be closed and the proceeds therein distributed to Seller.

 

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8.11 Tax Appeals . Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “ Pre-Closing Tax Appeals ”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller on behalf of the Subsidiary settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal on behalf of the Subsidiary pursuant to the terms of the applicable Lease. If Seller elects not to pursue on behalf of the Subsidiary any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal, unless Purchaser is required to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue on behalf the Subsidiary such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects on behalf of the Subsidiary not to pursue and which Purchaser elects or is obligated on behalf of the Subsidiary to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser and the Subsidiary, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and the Subsidiary and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closing.

ARTICLE 9

REPRESENTATIONS AND WARRANTIES

9.1 Seller’s Representations and Warranties . Seller represents and warrants to Purchaser that:

9.1.1 Organization and Authority . Seller and the Subsidiary are validly existing, and in good standing in the states in which they were was formed. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause the Subsidiary to consummate the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller and the Subsidiary at the Closing will be, authorized and executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller and the Subsidiary, enforceable in accordance with their terms.

9.1.2 No Conflicts . The execution, delivery and performance by Seller and the Subsidiary, as applicable, of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Seller, the Subsidiary, the Membership Interests or any portion of the Property is bound.

 

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9.1.3 Consents; Binding Obligations . No approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Seller or the Subsidiary, as applicable, to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller or the Subsidiary, as applicable, to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller or the Subsidiary, as applicable, are and shall be valid, legally binding obligations of and enforceable against Seller and the Subsidiary in accordance with their terms.

9.1.4 Pending Actions . Except as set forth on Schedule 9.1.4 , there is no action or proceeding pending or threatened against Seller or the Subsidiary including, but not limited to, those relating to the Membership Interests, the Subsidiary Agreement, the Real Property, the Improvements, the Leases, the Guaranties, the Tangible Personal Property or the Intangible Personal Property.

9.1.5 Leases, Guaranties, Tenants and Guarantors . Schedule 1.1.21(2) is a true, correct and complete list of all Leases, Guaranties, tenants and guarantors in effect as of the Effective Date. Seller has delivered, or has caused the Subsidiary to deliver, or has made available to Purchaser true, correct and complete copies of the Leases and the Guaranties. To Seller’s knowledge, no tenant or guarantor of any Lease has been released or discharged, voluntarily or involuntarily, or by operation of law, from any obligation related to such Lease. To Seller’s knowledge, Seller and the Subsidiary have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of its obligations under any of the Leases or Guaranties, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller and the Subsidiary have not received any notice from any tenant or guarantor under the Guaranties asserting any presently accrued defenses, offsets or disputes thereunder. The Rent Roll is true and correct in all material respects. Except as disclosed on Schedule 9.1.5 , there are no Leasing Costs or other obligations to brokers due or which will become due under any of the Leases, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement. Except as disclosed on Schedule 9.1.5 , all Leasing Costs have been fully paid and satisfied by Seller, except for Leasing Costs incurred with respect to Leases and Lease renewals and extensions and License Agreements and License Agreement renewals and extensions executed subsequent to the Effective Date pursuant to the terms of this Agreement.

9.1.6 Service Contracts and License Agreements . To Seller’s knowledge, Schedule 9.1.6 is a true, correct and complete list of all Service Contracts and License Agreements with respect to the Property. To Seller’s knowledge, Seller has delivered or caused the Subsidiary to deliver true, correct and complete copies of the Service Contracts and License Agreements to Purchaser. To Seller’s knowledge, Seller and the Subsidiary have not received notice of any default under, and to Seller’s knowledge, no other party is in default under, any of

 

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its obligations under any of the Service Contracts or License Agreements, and to Seller’s knowledge, there is no event which with the giving of notice or passage of time, or both, would be a default thereunder. Without limiting the foregoing, to Seller’s knowledge, Seller and the Subsidiary have not received any notice from any party under the Service Contracts or License Agreements asserting any presently accrued defenses, offsets or disputes thereunder.

9.1.7 Notices from Governmental Authorities . To Seller’s knowledge, except as set forth on Schedule 9.1.7 or as may be reflected by the Property Documents or otherwise disclosed by Seller to Purchaser in writing, Seller and the Subsidiary have not received from any governmental authority during the Seller’s Ownership Period written notice of any violation of any laws, that has not been corrected.

9.1.8 Prohibited Persons and Transactions . Neither Seller nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.1.9 Operating Statements . The Operating Statements delivered by Seller or made available to Purchaser are true and complete copies of the operating statements for the Property which Seller and the Subsidiary rely upon for the purposes of operating the Property.

9.1.10 Insurance . Schedule 9.1.10 is a true, correct and complete list of the insurance maintained by Seller and the Subsidiary with respect to the Property. Seller, and the Subsidiary have not received any written notice or request from any insurance company requesting the performance of any work or alteration with respect to the Property, which have not been fully and completely corrected. Seller and the Subsidiary have not received written notice from any insurance company concerning any defects or inadequacies in the Property, which, if not corrected, would result in the termination of insurance coverage or increase its cost.

9.1.11 Employees . There are no employees of Seller or the Subsidiary employed in connection with the use, management, maintenance or operation of the Property whose employment will continue after the Closing Date. There is no bargaining unit or union contract relating to any employees of Seller or the Subsidiary.

9.1.12 Third Party Agreements . Other than the Leases, the License Agreements, the Service Contracts, the Permitted Exceptions and the agreements set forth on Schedule 9.1.12 , there are no agreements to which Seller or the Subsidiary is party to. To Seller’s knowledge, except as set forth on Schedule 9.1.12 , Seller is not in default of, and no other party is in default of, any of its obligations under any of the agreements set forth on Schedule 9.1.12 , and there is no event which, with the giving of notice or passage of time, or both, would be a default thereunder.

 

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9.1.13 Seller’s Representatives . Seller’s Representatives are the individuals involved in supervising Seller’s and the Subsidiary’s ownership, operation, and maintenance of the Property, have knowledge of the operation and maintenance of the Property and have reviewed the representations of Seller set forth in, and the schedules and exhibits referenced in, this Section 9.1.13.

9.1.14 Ownership . Seller is the sole member of, and owns one hundred percent (100%) of the membership interests in, the Subsidiary. Except for the liens, encumbrances, liabilities, claims, covenants and restrictions relating to that portion of the GE Loan secured by the Membership Interests and the Property, which will be repaid, (i) Seller owns its interests in the Subsidiary free and clear of all liens, encumbrances, liabilities, claims, covenants and restrictions of any kind or character, including but not limited to, any security interests or, any restriction on sale or assignment or granting of any option, right or agreement for the purchase or acquisition of the same or any interest in the same and Seller has not transferred, assigned, sold, conveyed, pledged, mortgaged, granted a security interest in, or otherwise disposed of any of such interests or any portion thereof or interest therein or granted any option to any person or entity to acquire any of such interests.

9.1.15 Intentionally Deleted .

9.1.16 Subleases . Schedule 9.1.16 is a true, correct and complete list of all subleases covering the Property acknowledged, or consented to, by Seller and such additional subleases as to which Seller has knowledge of.

9.1.17 Subsidiary Agreement . Seller has delivered to Purchaser a true, complete and accurate copies of the Subsidiary Agreement, and all amendments thereto, all of which are each in full force and effect and have not been amended or modified, and there has been no material default by Seller or the Subsidiary under the Subsidiary Agreement (as applicable).

9.1.18 Subsidiary . Other than the Subsidiary, there are no corporations, partnerships, joint ventures, associations or other entities in which Seller owns, of record or beneficially, any direct or indirect equity or other interest or any right to acquire same.

9.1.19 Books and Records . The Books and Records contain accurate records of all meetings and accurately reflect all other actions taken by the members, boards of directors and all committees of the Subsidiary. Complete and accurate copies of all Books and Records of the Subsidiary have been provided by Seller to the Purchaser.

9.1.20 Bankruptcy . No petition in bankruptcy (voluntary or, to Seller’s knowledge, involuntary), assignment for the benefit of creditors or petition seeking reorganization or arrangement or other action under federal or state bankruptcy or insolvency laws is pending against or, to Seller’s knowledge, threatened against the Subsidiary.

9.1.21 Permitted Liabilities . The Subsidiary has no liabilities other than (i) those reflected on the consolidated balance sheet of each respective entity, dated as of March 31, 2010 (collectively, the “ Balance Sheets ”) and (ii) liabilities incurred in the ordinary course of the Subsidiary’s business related to the Property from April 1, 2010 through the Effective Date,

 

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which ordinary course liabilities (A) shall not materially exceed the corresponding line items for such ordinary course liabilities set forth in the Balance Sheets and (B) are subject to Purchaser’s consent rights otherwise contained in this Agreement (items (i) and (ii) of this Section 9.1.19 are referred to herein collectively as, the “ Permitted Liabilities ”), which Permitted Liabilities shall be paid prior to or at Closing except for Permitted Liabilities prorated in accordance with the terms of this Agreement.

9.1.22 Financial Statements . Seller has delivered to Purchaser true, correct and complete copies of the Financial Statements. The Financial Statements present fairly in all material respects the financial position, results of operations and cash flows of the Subsidiary as of the dates thereof and for the periods covered thereby, in accordance with GAAP applied on a consistent basis.

9.1.23 Taxes and Tax Returns . The Subsidiary does not file federal, state or local tax returns. The taxable financial results of the Subsidiary are included in the consolidated federal, state and local tax returns filed by iStar.

9.1.24 Undisclosed Liabilities . There is no basis for any present action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against the Subsidiary giving rise to any liability, except for (i) liabilities set forth on the Financial Statements and (ii) the Permitted Liabilities.

9.1.25 Collective Bargaining and Employee Plans . Neither Seller nor the Subsidiary is a party to any collective bargaining or similar agreement with respect to the Property. As of the date hereof, there are no employee benefit plans or arrangements with respect to the Subsidiary.

9.2 Purchaser’s Representations and Warranties . Purchaser represents and warrants to Seller that:

9.2.1 Organization and Authority . Purchaser is validly existing as a limited liability company in good standing in the State of Delaware. Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby, and this Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2 No Conflicts . The execution, delivery and performance by Purchaser of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any articles of formation, bylaws, partnership agreement (oral or written), operating agreement, indenture, deed of trust, mortgage, contract, agreement, judicial or administrative order, or any law to which Purchaser is bound.

 

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9.2.3 Consents; Binding Obligations . Except as set forth in Section 9.2.1, (a) no approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Purchaser to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Purchaser to consummate the transaction contemplated hereby, and (b) this Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms.

9.2.4 Pending Actions . There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.2.5 ERISA . (a) Purchaser is neither (i) an “employee benefit plan” (as defined in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended (“ ERISA ”)) which is subject to Title I of ERISA (an “ ERISA Plan ”), nor (ii) a “plan” (as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) which is subject to Section 4975 of the Code (a “ Code Plan ”); (b) the assets of Purchaser do not constitute “plan assets” (as defined in Section 3(42) of ERISA) of one or more ERISA Plans or Code Plans (“ Plan Assets ”) because, at the time of the Closing, the stock of Purchaser’s parent constitutes “publicly offered securities” (as defined in 29 C.F.R. Section 2510.3-101(b)(2)), which parent owns one hundred percent (100%) of the issued and outstanding equity of Purchaser; (c) Purchaser is not using Plan Assets in the performance or discharge of its obligations under this Agreement; (d) Purchaser is not a “governmental plan” (within the meaning of Section 3(32) of ERISA) and assets of Purchaser do not constitute plan assets of one or more such plans; and (e) transactions by or with Purchaser are not in violation of state statutes applicable to Purchaser regulating investments of and fiduciary obligations with respect to governmental plans.

9.2.6 Prohibited Persons and Transactions . Neither Purchaser nor any of its affiliates is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.

9.2.7 Availability of Funds . Subject to obtaining the financing contemplated by the Fixed Rate Term Sheet, the Floating Rate Term Sheet and the Mezzanine Loan as provided in Section 4.3.2, Purchaser currently has available and will at the Closing have available sufficient funds to pay the Purchase Price and to pay any and all other amounts payable by Purchaser pursuant to this Agreement and to effect the transactions contemplated hereby.

9.3 Survival of Representations and Warranties . The representations and warranties set forth in this Article 9 are made as of the Effective Date, are remade as of the Closing Date (subject to update for Updated Property Information pursuant to Section 4.4 and, changes that are not the result of a breach by Seller or Purchaser or any of their covenants in this Agreement), and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of nine (9) months (the “ Survival Period ”). Terms

 

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such as “to Seller’s knowledge,” “to the best of Seller’s knowledge” or like phrases mean the actual knowledge of the following persons: Barclay Jones, Executive Vice President, Michael Dorsch, Executive Vice President, Samantha Garbus, Senior Vice President, Nancy Zoeckler, Senior Vice President, Mary-Beth Roselle, Senior Vice President, Scott Quigle, Vice President, Carrie Crain, Vice President and the persons whose names are set forth on Schedule 9.3 (the foregoing persons are referred to herein collectively as, the “ Seller’s Representatives ”), without any duty of inquiry or investigation except in connection with such persons’ review of the representations and warranties of Seller set forth in Section 9.1 hereof as provided in Section 9.1.13 hereof; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representatives, or any of them, or any other officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. Said terms do not include constructive knowledge, imputed knowledge or knowledge Seller or such persons do not have but could have obtained through further investigation or inquiry. No financial advisor, broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller. Subject to Section 9.4 hereof and Sections 9.4 of the Harborside Purchase and Sale Agreement and the NG Partnership Interests Purchase and Sale Agreement, each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period, (2) Seller shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Seller on account of such breach (individually or when combined with damages from other breaches including damages on account of breaches by Purchaser under the Other Purchase and Sale Agreements) equals or exceeds $5,000,000, in which event Purchaser shall be liable to Seller for one-half of all such damage up to $5,000,000 and for all damage above $5,000,000, and (3) Purchaser shall not have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to Purchaser on account of such breach (individually or in the aggregate) equals or exceeds (i) $1,000,000 if such breach relates to the Property and the Membership Interests, in which event Seller shall be liable to Purchaser for one-half of all such damage up to $1,000,000 and for all such damage above $1,000,000 with respect to the Property and the Membership Interests or (ii) $5,000,000 for the Property, the Acquired Properties and the Other Real Property, in which event Seller shall be liable (without duplication of any claims made pursuant to subclause (i) of this clause (3)) to Purchaser for one-half of all such damage up to $5,000,000 and for all such damage above $5,000,000 with respect to the Property, the Acquired Properties and the Other Real Property, subject to the further provisions of this Section 9.3. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had actual knowledge as of Closing. Notwithstanding any other provision of this Agreement or of any closing deliveries of Seller contemplated by this Agreement: (a) subject to Section 9.4 hereof and Sections 9.4 of the Harborside Purchase and Sale Agreement and the NG Partnership Interests Purchase and Sale Agreement and other than Leasing Costs, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser pursuant to this Section 9.3 and any liability of Other Sellers pursuant to Sections 9.3 of the Other Purchase and Sale Agreements will in the aggregate be limited to five percent (5%) of the aggregate Purchase Price of the Acquired Properties and (b) there shall be no threshold or limitation or limitation on

 

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survival on Seller’s obligation to pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs), whether or not the obligations to pay any Leasing Costs first becomes known to Purchaser before, at or after the Closing; i.e., Seller shall pay or credit Purchaser for Leasing Costs payable by Seller under Section 8.5 (and the corresponding representation in Section 9.1.5 regarding Leasing Costs) regardless of the amount thereof and regardless of when the Leasing Cost becomes known to Purchaser. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages as a result of the breach of any or all representations or warranties set forth in this Agreement. The provisions of this Section 9.3 shall survive the Closing. Any breach of a representation or warranty or covenant that occurs prior to Closing shall be governed by ARTICLE 10.

9.4 Company Representations . Anything in this Agreement to the contrary notwithstanding, including Section 9.3, (i) there shall be no cap or floor on liability and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement and such subsections shall survive the Closing without limitation: Sections 9.1.1, 9.1.2, 9.1.3, 9.1.4, 9.1.14, 9.1.17, 9.1.18, 9.1.20, 9.1.22 and 9.1.23, (ii) there shall be no cap or floor on liability and the Survival Period shall be two (2) years from Closing and Purchaser shall not share in such liability pursuant to Section 9.3, for any misrepresentation or other breach of any representation or warranty contained in the following subsections of this Agreement: Sections 9.1.19, 9.1.21 and 9.1.24, and (iii) the Survival Period for Section 9.1.12 shall be two (2) years from Closing and remain subject to the caps, floors, and sharing of liability as set forth in Section 9.3 (items (i), (ii) and (iii) of this Section 9.4 are referred to herein collectively as, the “ Company Representations ”), subject to the applicable statues of limitation. Seller and iStar (“ Indemnitor ”) shall each indemnify Purchaser and hold Purchaser harmless from and against, any and all claims, liabilities, damages, losses, costs or expenses (including reasonable attorneys’ fees) incurred by Purchaser arising from the Company Representations. This Section 9.4 shall survive the Closing.

ARTICLE 10

DEFAULT AND REMEDIES

10.1 Seller’s Remedies . If Purchaser defaults on its obligations hereunder or under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Other Purchase and Sale Agreements, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Other Purchase and Sale Agreements and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Membership Interests hereunder or the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Membership Interests or the

 

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Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Membership Interests or the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.2 Purchaser’s Remedies . If Seller defaults on its obligations hereunder, or Other Sellers default in their obligations under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Other Purchase and Sale Agreements, Other Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Other Purchase and Sale Agreements and the first Sentence of Section 9.3 hereof and of the Other Purchase and Sale Agreements), and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to consummate the sale of the Membership Interests hereunder or Other Sellers fail to consummate the sale of the other Acquired Properties under the Other Purchase and Sale Agreements), Purchaser shall elect, as its sole remedy hereunder, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing, (b) enforce specific performance to consummate the sale of the Membership Interests hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, having given notice that it intends to seek specific performance, fails to file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the scheduled Closing Date. EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE MEZZANINE LOAN AND SECTION 9.4, IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MEMBERSHIP INTERESTS OR PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3 Attorneys’ Fees . In the event either party hereto employs an attorney in connection with claims by one party against the other arising from the operation of this Agreement, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in connection with such claims.

 

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10.4 Other Expenses . If this Agreement is terminated due to the default of a party, then the defaulting party shall pay any fees or charges due to the Title Company for preparation and/or cancellation of the Title Commitment.

ARTICLE 11

DISCLAIMERS, RELEASE AND INDEMNITY

11.1 Disclaimers By Seller . Except as expressly set forth in this Agreement and/or the Closing documents, it is understood and agreed that Seller and the Subsidiary and Seller’s and the Subsidiary’s agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Membership Interests, the Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the Property or any portion thereof, including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (m) the condition or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Property, (p) the potential for further development of the Property, (q) the merchantability of the Property or fitness of the Property for any particular purpose, (r) the truth, accuracy or completeness of the Property Documents or Updated Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Property.

11.2 Sale “As Is, Where Is . Purchaser acknowledges and agrees that upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept the Membership Interests and all beneficial interests arising therefrom “ AS IS, WHERE IS, WITH ALL FAULTS ,” except to the extent expressly provided otherwise in this Agreement and any document executed by Seller and delivered to Purchaser at Closing. Except as expressly set forth in this Agreement

 

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or such Closing documents, Purchaser has not relied and will not rely on, and Seller has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Membership Interests, the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller, or any property manager, real estate broker, financial advisor, agent or third party representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Purchaser represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Membership Interests and shall make an independent verification of the accuracy of any documents and information provided by Seller. Purchaser will conduct such inspections and investigations of the Membership Interests and the Property as Purchaser deems necessary, including, but not limited to, the physical and environmental conditions of the Property, and shall rely upon same. Purchaser acknowledges that Seller has afforded Purchaser a full opportunity to conduct such investigations of the Membership Interests and the Property as Purchaser deemed necessary to satisfy itself as to the Membership Interests and the condition of the Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser hereby represents and warrants to Seller that: (a) Purchaser is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Purchaser is purchasing the Membership Interests for business, commercial, investment or other similar purpose. Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Seller.

11.3 Seller Released from Liability . Purchaser acknowledges that it has had the opportunity to inspect the Property and observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Property and adjacent areas as Purchaser deems necessary, and, except as set forth herein or in any Closing document, Purchaser hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and liability, including without limitation, liabilities and responsibilities for the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, arising after the Effective Date, and liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“ CERCLA ”), regarding the condition, valuation, salability or utility of the Property or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under,

 

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adjacent to or otherwise affecting the Property). Except as set forth herein or in any closing documents, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property are or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property, including, without limitation, the landlord’s obligations under the Leases relating to the physical, environmental or legal compliance status of the Property, arising after the Effective Date. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

11.4 “ Hazardous Materials” Defined . For purposes hereof, “ Hazardous Materials ” means “Hazardous Material,” “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any other substances regulated because of their effect or potential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, and infectious materials.

11.5 Intentionally Deleted .

11.6 Survival . The terms and conditions of this ARTICLE 11 shall expressly survive the Closing, and shall not merge with the provisions of any closing documents.

Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Seller would not have agreed to sell the Membership Interests to Purchaser for the Purchase Price without the disclaimers and other agreements set forth above.

ARTICLE 12

MISCELLANEOUS

12.1 Parties Bound; Assignment . This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto. Purchaser may, at Purchaser’s sole cost and expense and at no cost or expense to Seller, assign its rights under this Agreement upon the following conditions: (a) the assignee of Purchaser must be (i) an entity controlling, controlled by, or under common control with Purchaser or (ii) an entity advised by an affiliate of Purchaser’s advisor, Dividend Capital Total Advisors LLC, (b) Intentionally Deleted, (c) Intentionally Deleted, (d) the assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser shall remain primarily liable for the performance of Purchaser’s obligations, (e) a copy of the fully executed written assignment and assumption agreement shall be delivered to Seller at least five (5) Business Days prior to Closing, (f) the requirements in Section 12.17 are satisfied and (g) such assignment shall in no event delay the Closing.

 

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12.2 Headings . The article, section, subsection, paragraph and/or other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.

12.3 Invalidity and Waiver . If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.

12.4 Governing Law . This Agreement shall be governed in all respects, including validity, construction, interpretation and effect, by the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Each of Purchaser and Seller hereby (i) irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State, City and County of New York for the purpose of any action or proceeding arising out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a New York state court or federal court located in the State, City and County of New York. Each of Purchaser and Seller hereby consents to and grants any such court jurisdiction over the person of such party and over the subject matter of any such dispute and agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 12.10, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof on such party.

12.5 Survival . The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing (other than any unfulfilled closing conditions which have been waived or deemed waived by the other party) shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

12.6 Entirety and Amendments . The exclusivity obligations and covenants set forth in that certain letter of intent dated April 2, 2010 between iStar Financial Inc., on behalf of Seller, and Purchaser are hereby incorporated herein and made a part of this Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. All Schedules and Exhibits hereto are incorporated herein by this reference for all purposes. All information disclosed on any one Schedule and not disclosed on the other Schedules shall, to the extent applicable, be deemed to be disclosed on such other Schedules.

12.7 Time . Time is of the essence in the performance of this Agreement.

 

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12.8 Intentionally Omitted .

12.9 No Electronic Transactions . The parties hereby acknowledge and agree this Agreement shall not be executed, entered into, altered, amended or modified by electronic means. Without limiting the generality of the foregoing, the parties hereby agree the transactions contemplated by this Agreement shall not be conducted by electronic means, except as specifically set forth in the “Notices” section of this Agreement.

12.10 Notices . All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.3. Any such notices shall, unless otherwise provided herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified and addressed to the party to be notified, with return receipt requested, (b) by overnight delivery using a nationally recognized overnight courier, (c) by personal delivery, or (d) by Portable Document Format (PDF) so long as a copy thereof is also sent by one of the other delivery methods set forth in Sections 12.10(a), (b) or (c). Notice given in accordance herewith for all permitted forms of notice other than by electronic mail, shall be effective upon the earlier to occur of actual delivery to the address of the addressee or refusal of receipt by the addressee. In no event shall this Agreement be altered, amended or modified by electronic mail or electronic record. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Notices given by counsel to the Purchaser shall be deemed given by Purchaser and notices given by counsel to the Seller shall be deemed given by Seller.

12.11 Construction . The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

12.12 Calculation of Time Periods; Business Day . Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at midnight local time in New York, New York. As used herein, the term “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday for national banks in the City of New York, New York or Colorado.

12.13 Execution in Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.

12.14 Recordation . Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent of Seller shall constitute a default hereunder by Purchaser,

 

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whereupon Seller shall have the remedies set forth in Section 10.1 hereof. In addition to any such remedies, Purchaser shall be obligated to execute an instrument in recordable form releasing this Agreement or memorandum or affidavit, and Purchaser’s obligations pursuant to this Section 12.14 shall survive any termination of this Agreement as a surviving obligation.

12.15 Further Assurances . In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the transfer of the Membership Interests to Purchaser.

12.16 Discharge of Obligations . The acceptance of the Membership Interests Power by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive Closing.

12.17 ERISA . Under no circumstances shall Purchaser have the right to assign this Agreement to any person or entity owned or controlled by an “employee benefit plan” (as defined in Section 3(3) of ERISA) if Seller’s sale of the Membership Interests to such person or entity would, in the reasonable opinion of Seller’s ERISA advisors or consultants, create or otherwise cause a “prohibited transaction” under ERISA or any other applicable law with an effect similar to that of Section 406 of ERISA including, but not limited to, Section 4975 of the Code (each such law, a “ Similar Law ”). In the event Purchaser assigns this Agreement or transfers any ownership interest in Purchaser, and such assignment or transfer would make the consummation of the transaction hereunder a “prohibited transaction” under ERISA or any Similar Law and would therefore either (a) necessitate the termination of this Agreement, or (b) cause Seller to incur liability under ERISA or such Similar Law if the transaction were consummated, then, in either case, notwithstanding any contrary provision which may be contained herein, Seller shall have the right to terminate this Agreement and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof. Anything in this Section 12.17 to the contrary notwithstanding, Seller shall have no right to terminate this Agreement under this Section 12.17 if Purchaser’s assignee expressly reaffirms in a writing addressed to Seller the representation in Section 9.2.5.

12.18 No Third Party Beneficiary . The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing, except that a tenant of the Property may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

12.19 Reporting Person . Purchaser and Seller hereby designate First American as the “reporting person” pursuant to the provisions of Section 6045(e) of the Internal Revenue Code of 1986, as amended.

 

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12.20 Post-Closing Access . From and after the Closing, the Purchaser will, at Seller’s sole cost and expense, permit Seller and Seller’s agents and representatives access (and will permit copying of materials pertaining to the period prior to the Closing), during business hours from time to time, to the Lease Files and other Property-related information upon reasonable advance notice to the Purchaser. This Section 12.20 shall survive the Closing.

12.21 Waiver of Jury Trial . SELLER AND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN SELLER AND PURCHASER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

12.22 Information and Audit Cooperation . Within 75 days after the Closing Date, Seller, at Purchaser’s sole cost and expense and at no cost or expense to Seller, shall allow Purchaser’s auditors access to the books and records of Seller relating to the operation of the Property for the two (2) year period prior to the Closing Date to enable Purchaser to comply with any financial reporting requirements applicable to Purchaser, upon at least three (3) Business Days prior written notice to Seller. In addition, Seller shall provide Purchaser’s designated independent auditors a representation letter regarding the books and records of the Property in substantially the form attached hereto as Exhibit H .

12.23 Bulk Sales Laws . Seller shall (i) comply with the bulk transfer requirements of the state in which the Property is located, (ii) keep Purchaser apprised of Seller’s compliance with such requirements and (iii) indemnify, defend and hold Purchaser harmless of and from any and all liabilities, claims, demands and expenses of any kind or nature which arise out of the failure of Seller to so comply with such requirements.

[SIGNATURE PAGES, SCHEDULES AND EXHIBITS TO FOLLOW]

 

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SIGNATURE PAGE TO AGREEMENT OF

PURCHASE AND SALE

BY AND BETWEEN

iSTAR CTL HOLDCO LLC,

AS SELLER

AND

TRT ACQUISITIONS LLC,

AS PURCHASER

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below.

PURCHASER :

 

TRT ACQUISITIONS LLC , a Delaware limited liability company
By:   DCTRT Real Estate Holdco LLC, Its Sole Member
  By:   Dividend Capital Total Realty Operating Partnership LP, Its Sole Member
    By:   Dividend Capital Total Realty Trust Inc., Its General Partner
      By:  

/s/ GREG MORAN

      Name:  

Greg Moran

      Title:  

Vice President

      Date: June 25, 2010

SELLER :

 

iSTAR CTL HOLDCO LLC , a Delaware limited liability company
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date: June 25, 2010

AGREED TO FOR PURPOSES OF SECTION 4.3.2 AND 9.4:

 

iSTAR FINANCIAL INC ., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Title:  

Senior Vice President

Date: June 25, 2010

MEMBER INTEREST PURCHASE AND SALE AGREEMENT


LIST OF SCHEDULES

 

Schedule 1.1.1       Intentionally Deleted
Schedule 1.1.3       Intentionally Deleted
Schedule 1.1.21(2)       List of Leases, Guaranties, Tenants and Guarantors
Schedule 1.1.21(3)       List of Excluded Personal Property
Schedule 1.2       Transfer Tax Responsibility
Schedule 4.3.2       INTENTIONALLY DELETED
Schedule 6.1.4       Security Deposits
Schedule 6.4.2       Third Parties
Schedule 6.5       INTENTIONALLY DELETED
Schedule 9.1.4       Pending Actions
Schedule 9.1.5       Leasing Costs
Schedule 9.1.6       Service Contracts and License Agreements
Schedule 9.1.7       Notices from Governmental Authorities
Schedule 9.1.10       Insurance Coverages
Schedule 9.1.12       Third Party Agreements
Schedule 9.1.15       INTENTIONALLY DELETED
Schedule 9.1.16       Subleases
Schedule 9.1.21       INTENTIONALLY DELETED
Schedule 9.1.23(3)       INTENTIONALLY DELETED
Schedule 9.3       Seller’s Representatives

LIST OF EXHIBITS

 

Exhibit A       Legal Description of Land
Exhibit B       Form of Assignment and Assumption of Membership Interests
Exhibit C       INTENTIONALLY DELETED
Exhibit D       Form of FIRPTA Certificate
Exhibit E       INTENTIONALLY DELETED
Exhibit F       INTENTIONALLY DELETED
Exhibit G       Form of Notice to Unisys
Exhibit H       Form of Audit Letter
Exhibit I       INTENTIONALLY DELETE

Exhibit 10.1

Wells Fargo Loan No. 33-0909758

LOAN AGREEMENT

by and between

THE ENTITIES SET FORTH ON SCHEDULE 1 ,

collectively, as Borrower

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Lender

Dated as of: June 25, 2010

Dividend Capital Floating Rate Office Portfolio

Document Prepared By:

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.


TABLE OF CONTENTS

 

                Page
ARTICLE 1. DEFINITIONS    1
  1.1      DEFINED TERMS    1
ARTICLE 2. LOAN; LOAN DOCUMENTS; SECURITY    1
  2.1      LOAN; EXTENSION OF LOAN TERM    1
  2.2      INTEREST; PAYMENTS    2
  2.3      LATE CHARGE; DEFAULT RATE    5
  2.4      MAXIMUM RATE PERMITTED BY LAW    6
  2.5      LOAN DOCUMENTS    6
  2.6      SECURITY    6
  2.7      INTENTIONALLY OMITTED    6
  2.8      INTEREST RATE PROTECTION AGREEMENT    6
ARTICLE 3. BORROWER’S LIABILITY    9
  3.1      BORROWER’S LIABILITY    9
ARTICLE 4. IMPOUNDS    11
  4.1      TAX IMPOUND    11
  4.2      INSURANCE IMPOUND    11
  4.3      ADDITIONAL IMPOUNDS    11
  4.4      CASH MANAGEMENT AGREEMENT    11
  4.5      GENERAL    12
  4.6      GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS    12
ARTICLE 5. REPRESENTATIONS AND WARRANTIES    13
  5.1      REPRESENTATIONS AND WARRANTIES    13
  5.2      REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPE STATUS    16
ARTICLE 6. HAZARDOUS MATERIALS    24
  6.1      HAZARDOUS MATERIALS INDEMNITY AGREEMENT    24
ARTICLE 7. COVENANTS OF BORROWER    24
  7.1      COSTS AND EXPENSES    24
  7.2      ERISA COMPLIANCE    25
  7.3      MANAGEMENT OF PROPERTY; BROKERAGE AGREEMENTS; OTHER AGREEMENTS    25
  7.4      COVENANTS - LEASES; MAJOR LEASES    25
  7.5      ASSIGNMENT OF INDEMNIFICATION    28
  7.6      RIGHT OF SUBORDINATION    28
  7.7      FURTHER ASSURANCES    28
  7.8      ASSIGNMENT    28
  7.9      EXISTENCE    28
  7.10      COMPLIANCE WITH LAWS, ETC    28
  7.11      LITIGATION    28
  7.12      MERGER, CONSOLIDATION, TRANSFER OF ASSETS    29
  7.13      ACCOUNTING RECORDS    29

 

i


  7.14      PAYMENT OF TAXES AND CLAIMS    29
  7.15      MAINTENANCE OF PROPERTY    29
  7.16      QUALIFICATION, NAME; EXISTENCE    29
  7.17      ALTERATIONS    29
  7.18      COMPLIANCE WITH PATRIOT ACT    30
  7.19      ACCESS TO PROPERTY    30
  7.20      NOTICE OF DEFAULT    30
  7.21      COOPERATE IN LEGAL PROCEEDINGS    30
  7.22      PERFORMANCE BY BORROWER    30
  7.23      ESTOPPEL CERTIFICATES    31
  7.24      ADVISOR    31
  7.25      NO JOINT ASSESSMENT    31
  7.26      REA COVENANTS    32
ARTICLE 8. FINANCIAL COVENANTS    32
  8.1      STATEMENTS REQUIRED    32
  8.2      FORM; WARRANTY    33
  8.3      CHARGE FOR LATE DELIVERY    33
  8.4      MINIMUM NET WORTH AND LIQUIDITY    34
ARTICLE 9. DEFAULTS AND REMEDIES    34
  9.1      DEFAULT    34
  9.2      ACCELERATION    35
  9.3      RIGHTS AND REMEDIES    35
ARTICLE 10. PREPAYMENT    36
  10.1      PREPAYMENT    36
  10.2      WAIVER    36
ARTICLE 11. PARTIAL RELEASE    36
  11.1      BORROWER RIGHT TO RELEASE INDIVIDUAL PROPERTIES    36
  11.2      CONDITIONS    37
ARTICLE 12. INSURANCE    39
  12.1      REQUIRED INSURANCE    39
  12.2      ADDITIONAL INSURANCE    42
  12.3      POLICY REQUIREMENTS    42
  12.4      MAINTENANCE OF INSURANCE    43
  12.5      TERRORISM COVERAGE    43
  12.6      CERTAIN RIGHTS OF LENDER    43
  12.7      CASUALTY AND CONDEMNATION; RESTORATION PROCEEDS    44
  12.8      RESTORATION    45
  12.9      DISBURSEMENT    46
ARTICLE 13. INDEMNITY    47
  13.1      INDEMNITY    47
  13.2      DUTY TO DEFEND, LEGAL FEES AND OTHER FEES AND EXPENSES    47
  13.3      MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION    47
  13.4      ERISA INDEMNIFICATION    47
  13.5      SPECIAL SERVICING    48

 

ii


ARTICLE 14. INTENTIONALLY OMITTED    48
ARTICLE 15. DUE ON SALE/ENCUMBRANCE    48
  15.1      DUE ON SALE/ENCUMBRANCE    48
  15.2      MEZZANINE DEBT    50
ARTICLE 16. LOAN SYNDICATION    51
  16.1      LOAN SYNDICATION AND DISCLOSURE OF INFORMATION    51
  16.2      APPOINTMENT AND AUTHORIZATION    53
  16.3      WELLS FARGO AS LENDER    54
  16.4      COLLATERAL MATTERS; PROTECTIVE ADVANCES    55
  16.5      POST-FORECLOSURE PLANS    55
  16.6      APPROVALS OF LENDERS    56
  16.7      NOTICE OF DEFAULTS    56
  16.8      ADMINISTRATIVE AGENT’S RELIANCE    57
  16.9      INDEMNIFICATION OF ADMINISTRATIVE AGENT    57
  16.10      LENDER CREDIT DECISION, ETC    58
  16.11      INTENTIONALLY OMITTED    58
  16.12      DEFAULTING LENDERS    59
  16.13      PARTICIPATIONS    59
  16.14      ASSIGNMENTS    60
  16.15      FEDERAL RESERVE BANK ASSIGNMENTS    60
  16.16      INFORMATION TO ASSIGNEE, ETC    60
  16.17      AMENDMENTS AND WAIVERS    60
  16.18      CONSENT TO AND ACKNOWLEDGEMENT OF ADMINISTRATIVE AGENT    62
  16.19      NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES; NON-LIABILITY OF ADMINISTRATIVE AGENT AND LENDERS    62
  16.20      DELAY OUTSIDE LENDER’S CONTROL    64
  16.21      ACTIONS    64
  16.22      FORM OF DOCUMENTS    64
  16.23      ADMINISTRATIVE AGENT’S AND LENDER PARTY’S AGENTS    64
  16.24      NOTICES    64
  16.25      FUNDS TRANSFER DISBURSEMENTS    65
  16.26      INTENTIONALLY OMITTED    66
  16.27      INTENTIONALLY OMITTED    66
  16.28      COST OF ENFORCEMENT    66
  16.29      CONVERSION TO REGISTERED FORM    66
  16.30      ELECTRONIC DELIVERY OF CERTAIN INFORMATION    66
  16.31      POSSESSION OF DOCUMENTS    67
  16.32      MODIFICATION TO LOAN TERMS    67
ARTICLE 17. MISCELLANEOUS PROVISIONS    69
  17.1      FORM OF DOCUMENTS    69
  17.2      NO THIRD PARTIES BENEFITED    69
  17.3      NOTICES    70
  17.4      ONGOING CREDIT AUTHORIZATION    70
  17.5      ATTORNEY-IN-FACT    70
  17.6      ACTIONS    70
  17.7      RIGHT OF CONTEST    70
  17.8      RELATIONSHIP OF PARTIES    70
  17.9      DELAY OUTSIDE LENDER’S CONTROL    70
  17.10      ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT    71
  17.11      IMMEDIATELY AVAILABLE FUNDS    71

 

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  17.12      INTENTIONALLY OMITTED    71
  17.13      LENDER’S AGENTS    71
  17.14      AUTHORIZATION TO FILE FINANCING STATEMENTS    71
  17.15      TAX SERVICE    71
  17.16      ADVERTISING    72
  17.17      COMMERCIAL LOAN    72
  17.18      DISBURSEMENT OF LOAN PROCEEDS; LIMITATION OF LIABILITY    72
  17.19      SEVERABILITY    72
  17.20      SET-OFF    72
  17.21      HEADINGS    73
  17.22      SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY    73
  17.23      GOVERNING LAW; JURISDICTION    73
  17.24      WAIVER OF RIGHT TO TRIAL BY JURY    75
  17.25      INTEGRATION; INTERPRETATION    75
  17.26      COUNTERPARTS    75
  17.27      AMENDMENTS    75
  17.28      CONSENTS AND APPROVALS; CONSTRUCTION    75
  17.29      BRING DOWN OF REPRESENTATIONS; SURVIVAL OF WARRANTIES; CUMULATIVE    75
  17.30      INTENTIONALLY OMITTED    75
  17.31      INTENTIONALLY OMITTED    76
  17.32      INTENTIONALLY OMITTED    76
  17.33      EXHIBITS; SCHEDULES    76
  17.34      CONFLICT    76
  17.35      SECURITIZATION INDEMNIFICATION; LOAN SALES AND LOAN PARTICIPATIONS; DISCLOSURE OF INFORMATION    76
  17.36      BORROWER WAIVERS    80
  17.37      REMEDIES OF BORROWER    80
  17.38      MULTIPLE BORROWERS    81

EXHIBITS AND SCHEDULES

 

Exhibit A      Definitions
Exhibit B      Property/Legal Description/Address/Information
Exhibit C      List of Loan Documents and Closing Documents
Exhibit D      Litigation Disclosures
Exhibit E      Additional Impounds
Exhibit E.1      List of Work
Exhibit E.2      Designated TI Impound Amount
Exhibit F      Allocated Loan Amount for each Individual Property
Exhibit G      Additional Insurance Provisions
Exhibit H      Assignment and Assumption Agreement
Exhibit I      Individual Loan Commitment/Pro Rata Share
Exhibit J      Syndication Note
Exhibit K      Transfer Authorizer Designation
Schedule 1      Borrowers
Schedule 5.1(j)(1)      Rent Payment Offsets / Defenses
Schedule 5.1(j)(2)      Leases With Options
Schedule 5.1(v)      Description of REA’s
Schedule A-10      Property Managers/Tenant Managers
Schedule A-11      Earn-Out Advance Requirements

 

iv


LOAN AGREEMENT

THIS LOAN AGREEMENT (this “ Agreement ”) is made and entered into June 25, 2010, by and between THE ENTITIES SET FORTH ON SCHEDULE 1 (each, a “ Borrower ” and, collectively, “ Borrower ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION , together with its successors and assigns (“ Lender ”).

R E C I T A L S

Borrower desires to borrow from Lender, and Lender agrees to loan to Borrower, the amounts described below pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, Borrower and Lender agree as follows:

ARTICLE 1. DEFINITIONS

 

1.1 DEFINED TERMS .

Unless otherwise defined in the text of this Agreement, the capitalized terms generally used in this Agreement shall have the meanings defined or referenced in Exhibit A attached hereto and incorporated herein for all purposes.

ARTICLE 2. LOAN; LOAN DOCUMENTS; SECURITY

 

2.1 LOAN; EXTENSION OF LOAN TERM .

 

  (a) Subject to the terms of this Agreement, Lender agrees to lend to Borrower, and Borrower agrees to borrow from Lender, the principal sum of FOUR HUNDRED FORTY-THREE MILLION THIRTY THOUSAND and 00/100 DOLLARS ($443,030,000.00) which sum shall be evidenced by the Note. The Loan shall be secured by the security interests and liens granted pursuant to certain of the Security Documents as more particularly set forth therein. Interest shall accrue, and be payable, in respect of the Loan as provided herein below. Subject to extension in accordance with Section 2.1(b) below, the Loan shall mature on the Maturity Date.

 

  (b)

Extension of Term. Borrower shall have three (3) successive options to extend the scheduled Maturity Date of the Loan to the one-year anniversary of the Maturity Date as theretofore in effect (the period of each such extension, an “ Extension Term ”), provided that (i) Borrower shall deliver to Lender written notice of its election of such Extension Term at least thirty (30) and not more than ninety (90) days prior to the then applicable Maturity Date; (ii) no Default shall have occurred and be continuing on either the date of such notice or the then applicable Maturity Date; (iii) Borrower shall have entered into an Interest Rate Protection Agreement for the applicable Extension Term in form and substance reasonably acceptable to Lender (including, without limitation, the Strike Price) and otherwise in accordance with the terms of Section 2.8 hereof and shall have collaterally assigned such Interest Rate Protection Agreement to Lender pursuant to the terms of a collateral assignment in form and substance substantially similar to the Collateral Assignment of Interest Rate Protection Agreement signed at the closing of the Loan; (iv) for the exercise of the (A) second extension option, the Debt Yield shall not be less than 13.5% and (B) third extension option, the Debt Yield shall not be less than 13.75%; (v) Borrower shall have delivered to Lender, together with its notice pursuant to clause (i) of this Section 2.1(b) and as of the commencement of the applicable Extension Term, an Officer’s Certificate, in form and substance reasonably acceptable to Lender, certifying that, to Borrower’s knowledge, each of the representations and warranties of Borrower contained in the Loan Documents is true, complete and correct in all material respects as of the date of such Officer’s Certificate to the extent such representation and warranties are not matters which by their nature can no longer be true and correct as a result of the passage of time; (vi) for the second and third extension options only, Borrower shall have paid to Lender the Extension Fee; and (vii) Borrower shall have paid to Lender all reasonable out-of-pocket expenses (including, without limitation, reasonable legal fees and expenses) incurred by Lender in connection with such extension. If Borrower fails to exercise

 

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any extension option in accordance with the provisions of this Agreement, such extension option, and any subsequent extension option hereunder, will automatically cease and terminate. Notwithstanding anything to the contrary set forth herein or in the other Loan Documents, unless the foregoing conditions have been met, Borrower has no right to an extension of the term of the Loan.

 

2.2 INTEREST; PAYMENTS .

 

  (a) Interest Accrual . Interest on the outstanding principal balance of the Note shall accrue from the Disbursement Date at the Note Rate calculated on an Actual/360 Basis.

 

  (b) Determination of Note Rate .

 

  (i) The Note Rate with respect to the Loan shall be: (A) the LIBOR Rate with respect to the applicable Rate Period for a LIBOR Loan or (B) the Prime Rate plus the Prime Rate Spread for a Prime Rate Loan if the Loan is converted to a Prime Rate Loan pursuant to the provisions hereof.

 

  (ii) Subject to the terms and conditions hereof, the Loan shall be a LIBOR Loan and Borrower shall pay interest on the outstanding principal amount of the Loan at the LIBOR Rate for the applicable Rate Period. Any change in the rate of interest hereunder due to a change in the Note Rate shall become effective as of the opening of business on the first day on which such change in the Note Rate shall become effective. Each determination by Lender of the Note Rate (which determination shall be made by Lender two (2) Business Days prior to the end of the then current Rate Period) shall be conclusive and binding upon Borrower for all purposes absent manifest error. Notwithstanding anything herein to the contrary, in no event shall Borrower have the right to convert a LIBOR Loan to a Prime Rate Loan.

 

  (iii) In the event that Lender shall have determined that by reason of circumstances affecting the interbank eurodollar market, adequate and reasonable means do not exist for ascertaining LIBOR, then Lender shall forthwith give notice by telephone of such determination, confirmed in writing, to Borrower at least one (1) day prior to the last day of the then current Rate Period. If such notice is given, the related outstanding LIBOR Loan shall be converted, on the last day of the then current Rate Period, to a Prime Rate Loan.

 

  (iv) If, pursuant to the terms hereof, any portion of the Loan has been converted to a Prime Rate Loan and Lender shall determine that the event(s) or circumstance(s) which resulted in such conversion shall no longer be applicable, Lender shall give notice by telephone of such determination, confirmed in writing, to Borrower at least one (1) day prior to the last day of the then current Rate Period. If such notice is given, the related outstanding Prime Rate Loan shall be converted to a LIBOR Loan on the last day of the then current Rate Period.

 

  (v)

If any requirement of law, or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for Lender to make or maintain a LIBOR Loan as contemplated hereunder, for so long as such requirement of law (or interpretation or application thereof) is effective (A) the obligation of Lender hereunder to make a LIBOR Loan or to convert a Prime Rate Loan to a LIBOR Loan shall be canceled forthwith and (B) any outstanding LIBOR Loan shall be converted automatically to a Prime Rate Loan on the last day of the then current Rate Period or within such earlier period as required by law. Borrower hereby agrees promptly to pay to Lender, upon

 

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demand, any additional amounts necessary to compensate Lender for any reasonable out of pocket costs directly incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees payable by Lender to lenders of funds obtained by it in order to make or maintain the LIBOR Loan hereunder.

 

  (c)

Payments . Monthly payments, each in the P&I Payment Amount, shall commence on the First P&I Due Date and continue on each Due Date thereafter. In addition, if the Disbursement Date is not the first (1 st ) day of a calendar month, an interest-only payment pursuant to subsection (a)  above shall be due on the Disbursement Date for interest due from and including the Disbursement Date to the last day of the month ending prior to the First Due Date. On the Maturity Date, all unpaid principal and accrued but unpaid interest shall be due and payable in full. All interest shall be paid in arrears. Except as otherwise specifically provided in this Agreement or the other Loan Documents, all payments and deposits due under the Note or the other Loan Documents shall be made to Lender not later than 2:00 p.m., California time, on the day on which such payment or deposit is due. Any funds received by Lender after such time shall, for all purposes, be deemed to have been received on the next succeeding Business Day.

 

  (d) Acknowledgments . Interest calculated on an Actual/360 Basis exceeds interest calculated on a 30/360 Basis and, therefore: (a) a greater portion of each monthly installment of principal and interest will be applied to interest using the Actual/360 Basis than would be the case if interest accrued on a 30/360 Basis; and (b) the unpaid principal balance of the Note on the Maturity Date will be greater using the Actual/360 Basis than would be the case if interest accrued on a 30/360 Basis.

 

  (e) Application of Payments . All payments paid by Borrower to Lender in connection with the obligations of Borrower under this Agreement and under the other Loan Documents shall be applied in the order of priority as set forth in the Cash Management Agreement. The P&I Payment Amount shall be applied (a) first, to accrued but unpaid interest on the Note; and (b) second, to the unpaid principal balance of the Note. Borrower irrevocably waives the right to direct the application of any payments at any time received by Lender from or on behalf of Borrower, and during the continuance of a Default, Borrower agrees that Lender shall have the continuing exclusive right to apply any payments to the then due and owing obligations of Borrower in such order of priority as Lender may deem advisable.

 

  (f) Foreign Taxes .

 

  (i)

Taxes . All payments made by Borrower hereunder shall be made free and clear of, and without reduction for or on account of, income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions, reserves or withholdings imposed, levied, collected, withheld or assessed by any governmental authority, which are imposed, enacted or become effective after the date hereof (such non-excluded taxes being referred to collectively as “Foreign Taxes”), excluding income and franchise taxes imposed by the jurisdiction under the laws of which Lender is organized or any political subdivision or taxing authority thereof or therein or imposed by the jurisdiction of Lender’s applicable lending office where Lender is resident or engaged in business or any political subdivision or taxing authority thereof or therein or in the jurisdiction of whichever entity Lender syndicates the Loan to in accordance with the terms and conditions of this Agreement. If any Foreign Taxes are required to be withheld from any amounts payable to Lender hereunder and under all other loans held by Lender that are similarly affected, the amounts so payable to Lender shall be increased to the extent necessary to yield to Lender (after payment of all Foreign Taxes), interest or any such other amounts payable hereunder at the rate or in the amounts specified hereunder. Whenever any Foreign Tax is payable pursuant to applicable law by Borrower, as promptly as possible thereafter, Borrower

 

3


 

shall send to Lender an original official receipt, if available, or certified copy thereof showing payment of such Foreign Tax. Borrower hereby indemnifies Lender for any incremental taxes, interest or penalties that may become payable by Lender which may result from any failure by Borrower to pay any such Foreign Tax when due to the appropriate taxing authority or any failure by Borrower to remit to Lender the required receipts or other required documentary evidence.

 

  (ii) Tax Forms . Prior to the date that any Lender organized under the laws of a jurisdiction outside the United States of America becomes a party hereto, such Lender shall deliver to Borrower such certificates, documents or other evidence, as required by the Code or Treasury Regulations issued pursuant thereto (including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms), properly completed, currently effective and duly executed by such Lender establishing that payments to it hereunder and under the Note are (i) not subject to United States Federal backup withholding tax and (ii) not subject to United States Federal withholding tax under the Code. Each such Lender shall (x) deliver further copies of such forms or other appropriate certifications on or before the date that any such forms expire or become obsolete and after the occurrence of any event requiring a change in the most recent form delivered to the Borrower and (y) obtain such extensions of the time for filing, and renew such forms and certifications thereof, as may be reasonably requested by Borrower. Borrower shall not be required to pay any amount pursuant to clause (i) above to any Lender that is organized under the laws of a jurisdiction outside of the United States of America if such Lender fails to comply with the requirements of this clause (ii). Borrower will not be required to pay any additional amounts in respect of United States federal income tax pursuant to clause (i) above to Lender if the obligation to pay such additional amounts would not have arisen but for a failure by such Lender to comply with its obligations under this clause (ii).

 

  (g) Additional Costs . In the event that any change in any requirement of law or in the interpretation or application thereof, or compliance by Lender with any request or directive (whether or not having the force of law) hereafter issued from any central bank or other governmental authority:

 

  (i) shall hereafter impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of LIBOR hereunder;

 

  (ii) shall hereafter have the effect of reducing the rate of return on Lender’s capital as a consequence of its obligations hereunder to a level below that which Lender could have achieved but for such adoption, change or compliance (taking into consideration Lender’s policies with respect to capital adequacy) by any amount reasonably deemed by Lender to be material; or

 

  (iii) shall hereafter impose on Lender any other condition and the result of any of the foregoing is to materially increase the cost to Lender of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder;

then, in any such case, Borrower shall promptly pay to Lender, upon demand, any additional amounts necessary to compensate Lender, for such additional cost or reduced amount receivable which Lender deems to be material as reasonably determined by Lender, provided that, such demand by Lender shall apply to all loans similarly affected by such change. If Lender becomes

 

4


entitled to claim any additional amounts pursuant to this subsection, Lender shall provide Borrower with not less than ninety (90) days notice specifying in reasonable detail the event by reason of which it is has become so entitled and the additional amount required to fully compensate Lender for such additional cost or reduced amount together with a certificate as to any additional costs or amounts payable pursuant to the foregoing sentence submitted by Lender to Borrower (which certificate shall be conclusive in the absence of manifest error). This provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents.

 

  (h) Breakage Costs . Borrower agrees to indemnify Lender and to hold Lender harmless from any loss or expense which Lender directly sustains or incurs as a consequence of (A) any default by Borrower in payment of the principal of or interest on a LIBOR Loan, including, without limitation, any such loss or expense arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a LIBOR Loan hereunder, (B) any prepayment (whether voluntary or mandatory) of the LIBOR Loan on a day that is not the last day of a Rate Period, including, without limitation, such loss or expense arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain the LIBOR Loan hereunder, and (C) the conversion (for any reason whatsoever, whether voluntary or involuntary) of the Loan from a LIBOR Loan to a Prime Rate Loan with respect to any portion of the outstanding principal amount of the Loan then bearing interest at the LIBOR Rate on a date other than the last day of a Rate Period, including, without limitation, such loss or expenses arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a LIBOR Loan hereunder (the amounts referred to in clauses (A), (B) and (C) are herein referred to collectively as the “Breakage Costs”); provided, however, Borrower shall not indemnify Lender from any loss or expense arising from Lender’s willful misconduct or gross negligence. This provision shall survive payment of the Note in full and the satisfaction of all other obligations of Borrower under this Agreement and the other Loan Documents. Notwithstanding the foregoing or anything herein to the contrary, provided Borrower makes any prepayment (whether voluntary or mandatory) of the LIBOR Rate Loan on the last day of a Rate Period, or if such date is not the last day of a Rate Period but such prepayment includes the payment of Short Interest, then no Breakage Costs shall be due and payable in connection with such prepayment.

 

  (i) Interest Rate Protection Breakage Costs . Borrower shall pay to Lender any losses, costs (including, without limitation, cost of funding), and expenses that Lender directly incurs as a result of any default in performance of the obligations of Borrower pursuant to the Interest Rate Protection Agreement or any termination of the Interest Rate Protection Agreement, if any (the “Interest Rate Protection Breakage Costs”). The Interest Rate Protection Breakage Costs shall be due and payable by Borrower pursuant to the terms of the Interest Rate Protection Agreement and shall be secured on a pari-passu basis with the Debt by the lien of the Mortgage.

 

  (j) Date of Payments . Whenever any payment to be made hereunder or under any other Loan Document shall be stated to be due on a day which is not a Business Day, the due date thereof shall be deemed to be the immediately succeeding Business Day.

 

2.3 LATE CHARGE; DEFAULT RATE .

 

  (a) Late Charge . If all or any portion of any payment (including, without limitation, any payment of any interest, the P&I Payment Amount, Impounds or other deposit(s)) required hereunder (other than the payment due on the Maturity Date) is not paid or deposited on or before the day on which the payment is due, Borrower shall pay a late or collection charge, as liquidated damages, equal to four percent (4%) of the amount of such unpaid payment (herein called “ Late Charge ”). If all or any portion of the payment due on the Maturity Date is paid after the Maturity Date and on a date which is not the first (1st) day of a calendar month, Borrower shall pay a late or collection charge, as liquidated damages, equal to the interest which would have accrued on such amount during the period commencing on the date payment of such amount is actually made and ending on the last day of the calendar month in which payment of such amount is actually made. Borrower acknowledges that Lender will incur additional expenses as a result of any late payments or deposits hereunder, which expenses would be impracticable to quantify, and that Borrower’s payments under this Section 2.3 are a reasonable estimate of such expenses.

 

5


  (b) Default Rate . Commencing upon a Default and continuing until such Default shall have been cured by Borrower, all sums owing on the Loan shall bear interest at the Default Rate.

 

2.4 MAXIMUM RATE PERMITTED BY LAW .

Neither this Agreement, the Note nor any of the other Loan Documents shall be construed to require the payment or permit the collection of any interest or any late payment charge in excess of the maximum rate permitted by law. If any such excess interest or late payment charge is provided for under this Agreement, the Note or any of the other Loan Documents or if this Agreement, the Note or any of the other Loan Documents shall be adjudicated to provide for such excess, Borrower shall not be obligated to pay such excess notwithstanding any other provision of the Loan Documents. If Lender shall collect amounts which are deemed to constitute interest and which would increase the effective interest rate to a rate in excess of the maximum rate permitted by applicable law, all such amounts deemed to constitute interest in excess of the maximum legal rate shall, upon such determination, at the option of Lender, be returned to Borrower or credited against the outstanding principal balance of the Loan.

 

2.5 LOAN DOCUMENTS .

Borrower shall deliver to Lender concurrently with this Agreement each of the Loan Documents, properly executed and in recordable form, as applicable.

 

2.6 SECURITY . The Loan and all obligations of Borrower arising hereunder and under the other Loan Documents shall be secured by (i) the Mortgage creating a senior priority lien on the Property and the Collateral, (ii) the other Loan Documents and any security interests and liens created thereby, and (iii) the Impounds established pursuant to this Agreement. Notwithstanding the foregoing or anything contained in this Agreement or the other Loan Documents to the contrary, it is expressly understood and acknowledged by the parties hereto that neither the Guaranty nor the Hazardous Materials Indemnity Agreement shall constitute security for the Loan.

 

2.7 INTENTIONALLY OMITTED .

 

2.8 INTEREST RATE PROTECTION AGREEMENT .

 

  (a)

Prior to or contemporaneously with the Disbursement Date, Borrower shall enter into an Interest Rate Protection Agreement with a LIBOR strike price equal to the Strike Price. The Interest Rate Protection Agreement (i) shall be in form and substance reasonably acceptable to Lender, (ii) subject to subsection (c) below, may be with Wells Fargo Bank, N.A. (or an affiliate thereof) or another counterparty acceptable to Lender (the “ Counterparty ”), (iii) shall be for a period equal to the term of the Loan (not inclusive of any then currently not exercised extension options, if any), and (iv) shall have an initial notional amount equal to $336,030,000.00, provided , however , if the Northrop VA Property is not released from the encumbrance of the Loan within sixty (60) calendar days of the date hereof, then Borrower shall be required to purchase another, or amend the existing, Interest Rate Protection Agreement so that it shall have, in total, interest-rate protection in a notional amount equal to $443,030,000.00 (the “ Supplemental Interest Rate Protection Agreement Requirement ”). Borrower shall direct the Counterparty to deposit directly into the Restricted Account any amounts due Borrower under such Interest Rate Protection Agreement so long as any portion of the Debt remains outstanding, provided that the Debt shall be deemed to remain outstanding if the Property is transferred by judicial or non-judicial foreclosure or deed-in-lieu thereof. Additionally, Borrower shall collaterally assign to Lender all of its right, title and interest to receive any and all payments (other than as set forth in (i) and (ii) below) under the Interest Rate Protection Agreement pursuant to a collateral assignment of interest rate protection agreement in form and substance reasonably similar to the Interest Rate Protection Agreement signed on the date hereof, and shall deliver to Lender an executed counterpart of such Interest Rate Protection Agreement (which shall, by its terms, authorize the assignment to Lender

 

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and require that payments be deposited directly into the Restricted Account). To the extent that the then currently effective Interest Rate Protection Agreement provides interest-rate-protection coverage that is in excess of the amounts then currently due and outstanding under the Loan, Borrower may either:

 

  (i) sell to a third party or assign to an Affiliate that amount of the interest-rate-protection coverage in excess of the amounts then currently due and outstanding under the Loan, provided (A) that prior to any such sale the Borrower delivers to Lender an Officer’s Certificate certifying that (1) the sale of such remaining interest-rate-protection coverage complies with the terms and conditions of this Agreement, (2) does not effect Lender’s security interest in the then currently effective Interest Rate Protection Agreement (except for that interest in the Interest Rate Protection Agreement that is being conveyed pursuant to this subsection), and (3) the remaining interest-rate-protection coverage in favor of Lender under the amended Interest Rate Protection Agreement covers the then currently outstanding principal balance of the Loan, (B) that prior to any such sale Borrower delivers to Lender, for review and comment, all documentation regarding the revisions to the Interest Rate Protection Agreement, which revisions must be reasonably acceptable to Lender, and (C) Borrower shall pay to Lender all reasonable out-of-pocket third party costs and expenses paid or incurred by Lender in connection with any such sale.

 

  (ii) terminate that portion of the Interest Rate Cap Agreement that provides interest-rate-protection coverage in excess of the Loan’s then currently outstanding principal balance, provided (A) that prior to any such termination the Borrower delivers to Lender an Officer’s Certificate certifying that (1) the termination of such excess interest-rate-protection coverage complies with the terms and conditions of this Agreement, (2) does not effect Lender’s security interest in the then currently effective Interest Rate Protection Agreement (except for that interest in the Interest Rate Protection Agreement that is being terminated pursuant to this subsection), and (3) the remaining interest-rate-protection coverage in favor of Lender under the amended Interest Rate Protection Agreement covers the then currently outstanding principal balance of the Loan, (B) that prior to any such termination Borrower delivers to Lender, for review and comment, all documentation regarding the revisions to the Interest Rate Protection Agreement, which revisions must be reasonably acceptable to Lender, and (C) Borrower shall pay to Lender all reasonable out-of-pocket third party costs and expenses paid or incurred by Lender in connection with any such termination.

 

  (iii) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement. Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Protection Agreement in the event of a default by the Counterparty and shall not waive, amend or otherwise modify any of its rights thereunder.

 

  (b)

If at any time (i) Wells Fargo Bank, N.A. or any of its affiliates is not “Lender” under the Loan, or (ii) Wells Fargo Bank, N.A. or any of its affiliates is not the Counterparty, then in the event there is any downgrade, withdrawal or qualification of the long-term unsecured debt rating of the Counterparty below an “A” by S&P or below an “A2” by Moody’s, Borrower within ten (10) Business Days following receipt of written notice from Lender of such downgrade, withdrawal or qualification must either: (A) arrange for the Counterparty to provide a guaranty from an entity with a long term, unsecured and unsubordinated debt rating of at least “A” by S&P or “A2” by Moody’s in form and substance reasonably acceptable to Lender and the Rating Agencies or (B) replace the Interest Rate Protection Agreement with a new Interest Rate Protection Agreement with an Acceptable Counterparty (a “ Replacement Interest Rate Protection Agreement ”).

 

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Notwithstanding the foregoing, in the event the Counterparty is Wells Fargo Bank, N.A. or any of its affiliates and neither Wells Fargo Bank, N.A. nor any of its affiliates is the Lender, such Replacement Interest Rate Protection Agreement is only required to be delivered in the event there is any downgrade, withdrawal or qualification of the long-term unsecured debt rating of the Counterparty below an “A” by S&P and below an “A2” by Moody’s. In furtherance of the foregoing, if Wells Fargo Bank, N.A. and/or any of its affiliates are both Lender and Counterparty, then no Replacement Interest Rate Protection Agreement shall be required.

 

  (c) In the event that Borrower fails to purchase and deliver to Lender the Interest Rate Protection Agreement or fails to maintain the Interest Rate Protection Agreement in accordance with the terms and provisions of this Agreement, Lender may purchase the Interest Rate Protection Agreement and the third-party cost incurred by Lender in purchasing such Interest Rate Protection Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender.

 

  (d) If required by Lender in connection with any Interest Rate Protection Agreement where Wells Fargo Bank, N.A. or any affiliate thereof is not the Counterparty thereunder, Borrower shall obtain and deliver to Lender an opinion from counsel (which counsel may be in house counsel for the Counterparty) for the Counterparty (upon which Lender and its successors and assigns may rely) which shall provide, in relevant part, that:

 

  (i) the Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Protection Agreement;

 

  (ii) the execution and delivery of the Interest Rate Protection Agreement by the Counterparty, and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;

 

  (iii) all consents, authorizations and approvals required for the execution and delivery by the Counterparty of the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance; and

 

  (iv) the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

 

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ARTICLE 3. BORROWER’S LIABILITY

 

3.1 BORROWER’S LIABILITY .

 

  (a) Limitation . Except as otherwise provided in this Article 3 , Lender’s recovery against Borrower under this Agreement and the other Loan Documents shall be limited solely to the Property and the Collateral.

 

  (b) Exceptions; Limited Liability . Nothing contained in this Article 3 or elsewhere in this Agreement or the other Loan Documents, however, shall limit in any way the personal liability of Borrower owed to Lender for any Losses (defined below) incurred by Lender with respect to any of the following matters: (i) fraud or intentional or willful material misrepresentation by Borrower or Guarantor, or any Affiliate of Borrower or Guarantor under the control of Borrower or Guarantor, respectively; (ii) commission of a criminal act by Borrower, Guarantor, or any Affiliate of Borrower or Guarantor under the control of Borrower or Guarantor, respectively, which results in a forfeiture of the Property; (iii) material intentional physical waste of the Property or the Collateral; (iv) failure to pay property or other taxes, assessments assessed against the Property or charges which could become Liens on the Property (other than (x) amounts paid to Lender for taxes, assessments or charges pursuant to Impounds and where Lender elects (during the continuance of a Default or otherwise) not to apply such funds toward payment of the taxes, assessments or charges owed or (y) taxes, assessments or charges owed that are contested strictly in accordance with the terms of the Loan Documents) to the extent that the revenue from the Property is sufficient to pay such amount; (v) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto; (vi) failure to deliver any insurance or condemnation proceeds or awards or any security deposits received by Borrower to Lender or to otherwise apply such sums as required under the terms of the Loan Documents or any other instrument now or hereafter securing the Loan; (vii) failure to apply any rents, royalties, accounts, revenues, income, issues and profits which are collected or received by Borrower during the period of any Default or after acceleration of the indebtedness and other sums owing under the Loan Documents to the payment of either (A) such indebtedness or other sums due Lender or (B) the normal and necessary operating expenses of the Property; (viii) any breach by Borrower of any covenant in this Agreement or in the Mortgage regarding Hazardous Materials or in any indemnity or other agreement regarding Hazardous Materials executed by Borrower in favor of Lender in connection with the Loan (including, without limitation, the Hazardous Materials Indemnity Agreement), or any representation or warranty of Borrower regarding Hazardous Materials contained therein proving to have been untrue in any material respect when made; (ix) any transfer taxes (or similar fees or taxes) incurred in connection with a transfer of the Property resulting from a foreclosure of the Mortgage or a deed-in-lieu of foreclosure of the Property; (x) Borrower’s failure to comply with the provisions of Sections 5.2 (to the extent such failure to comply in itself, or in the aggregate with other violations of Section 5.2 results in the substantive consolidation of Borrower) or Section 17.35 of this Agreement; (xi) Borrower’s or Guarantor’s failure to satisfy the Indemnification Obligations (as defined in the Lockbox Agreement) pursuant to the terms of the Lockbox Agreement; (xii) Borrower’s failure to deliver the Letter of Credit Assignment in accordance with the terms of Section 7.4(g) of this Agreement; (xiii) in connection with the assertion by Northrop Grumman Systems Corporation or its Affiliates of any rights or claims in connection with any right of first offer or right of first negotiation in the Northrop VA Lease with respect to the negotiations leading to, or the acquisition and financing of, the Northrop VA Property or the partnership interests of the owner of the Northrop VA Property by Borrower and/or any of its Affiliates arising in connection with the Purchase and Sale Agreements (such Losses in connection with the foregoing to include, but not be limited to, reasonable attorney’s fees and litigation expenses); or (xiv) a material misrepresentation with respect to the representations in Section 5.3 hereof. The term “ Losses ” as used herein shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities and any impairment of Lender’s security for the Loan), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including, but not limited to, reasonable legal fees and other costs of defense).

 

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  (c) Exceptions; Full Recourse . Notwithstanding the foregoing, or anything to the contrary contained in this Agreement or the other Loan Documents, the limitation on recourse set forth in Article 3.1(a) and (b)  above shall be null and void and completely inapplicable, and Borrower shall be fully and personally liable for the payment and performance of all obligations set forth in this Agreement and the other Loan Documents, including, with respect to (I) and (II) below, the payment of all principal, interest and other amounts under the Note, (I)(A) in the event the Property or the Collateral shall become an asset in (x) a voluntary bankruptcy or insolvency proceeding or other voluntary Material Action, or (y) an involuntary bankruptcy or insolvency proceeding or other involuntary Material Action, which, in either case, is consented to or colluded by Borrower, Guarantor, or an Affiliate of Borrower, or Guarantor controlled by Borrower or Guarantor, respectively, or filed by Borrower or Guarantor or an Affiliate of Borrower or Guarantor controlled by Borrower or Guarantor, respectively, and which is not dismissed within ninety (90) days of filing; or (B) in the event of a Default resulting from a Prohibited Property Transfer or a Prohibited Equity Transfer (excluding, however, any default under, or violation of, the terms of Section 7.4 of this Agreement) and (II) each of Borrower and Guarantor shall have full recourse liability for a portion of the Secured Obligations hereunder in an amount equal to (x) for so long as the Northrop VA Property is subject to the encumbrance of this Loan and the term of the Northrop VA Lease has not been extended, as reasonably acceptable to Lender, beyond its current term, 15% of the then currently outstanding principal balance of the Loan or (y) for so long as the Northrop VA Property is either (i) no longer subject to the encumbrance of this Loan or (ii) subject to a lease the term for which has been, on terms reasonably acceptable to lender, extended beyond its current term, 10% of the then currently outstanding principal balance of the Loan (collectively, “ Borrower’s Debt Liability ”) until (a) the Loan to Value Ratio (based upon those Property appraisals delivered to Lender in connection with the origination of the Loan) is less than fifty percent (50.0%) (the “ LTV Decrease ”) and (b) the LTV Decrease is the direct result of the release of one or more Properties pursuant to the terms and conditions set forth in Article 11 of this Agreement (provided that any Property Release that is permitted pursuant to Section 11.2(b) to cure a Default of the Loan shall not apply to this Section 3.1(c) ). Notwithstanding anything to the contrary set forth herein, for so long as the Northrop VA Property remains subject to the encumbrance of this Loan and the term of the Northrop VA Lease has not been extended, as reasonably acceptable to Lender, beyond its current term, the Borrower’s Debt Liability shall remain in full force and effect during the term of the Loan and no LTV Decrease shall terminate Borrower’s Debt Liability. The Borrower’s Debt Liability shall not be deemed reduced by application of any of the following: (w) payments made during the continuation of a Default or an event or condition which, with the passage of time or giving of notice, or both, would constitute a Default, (x) proceeds from any foreclosure sale or liquidation of the Property, (y) the fair market value of the Property in the event that Lender takes title to the Property by foreclosure, deed-in-lieu of foreclosure or otherwise, or (z) condemnation awards or insurance proceeds. In addition, in the event that the Borrower fails to satisfy the Supplemental Interest Rate Protection Agreement Requirement set forth in Section 2.8 hereof, then Borrower and Guarantor shall be fully liable to Lender for any and all third-party costs incurred by Lender to purchase an Interest Rate Protection Agreement that satisfies the Supplemental Interest Rate Protection Agreement Requirement.

 

  (d) No Waiver, Release or Impairment . Nothing contained in this Article 3 shall be deemed to waive, release, affect or impair the indebtedness evidenced by the Loan Documents or the obligations of Borrower under the Loan Documents, or the liens and security interests created by the Loan Documents, or Lender’s rights to enforce its rights and remedies under the Loan Documents and under any guaranty or indemnity provided herein, in the Loan Documents or in connection with the Loan, or otherwise provided in equity or under applicable law, including, without limitation, the right to pursue any remedy for injunctive or other equitable relief, or any suit or action in connection with the preservation, enforcement or foreclosure of the liens, mortgages, assignments and security interests which are now or at any time hereafter security for the payment and performance of all obligations under this Agreement or in the other Loan Documents.

 

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  (e) Prevail and Control . The provisions of this Article 3 shall prevail and control over any contrary provisions elsewhere in this Agreement or the other Loan Documents.

ARTICLE 4. IMPOUNDS

 

4.1 TAX IMPOUND .

Borrower shall deposit with Lender the following amounts (collectively, “ Tax Impound ”): $0.00 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the real estate taxes and assessments payable by Borrower with respect to the Property (collectively, “ Taxes ”) at least thirty (30) days prior to each date on which Taxes become delinquent (“ Delinquency Date ”). The initial estimated monthly amount to be deposited by Borrower for Taxes on each Due Date is $0. If Lender reasonably determines at any time that the Tax Impound will not be sufficient to pay any Taxes at least thirty (30) days prior to the Delinquency Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Delinquency Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the Business Day immediately preceding the Delinquency Date. So long as no Default exists, Lender shall apply the Tax Impound to the payment of the Taxes. Deposits into the Tax Impound shall be waived, provided no Default is continuing, provided Borrower delivers, or causes to be delivered to Lender, evidence of the timely payment of such Taxes.

 

4.2 INSURANCE IMPOUND .

Borrower shall deposit with Lender the following amounts (collectively, “ Insurance Impound ”): $0 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the premiums for insurance required to be maintained by Borrower hereunder (“ Insurance Premiums ”) at least thirty (30) days prior to the date on which the current such insurance policies expire (“ Insurance Expiration Date ”). The initial estimated monthly amount to be deposited by Borrower for Insurance Premiums on each Due Date is $0. If Lender reasonably determines at any time that the Insurance Impound will not be sufficient to pay the Insurance Premiums at least thirty (30) days prior to the Insurance Expiration Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Insurance Expiration Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the day immediately preceding the Insurance Expiration Date. So long as no Default exists, Lender shall apply the Insurance Impound to the payment of the Insurance Premiums. Deposits into the Insurance Impound shall be waived provided no Default is continuing and provided Borrower delivers, or causes to be delivered to Lender, evidence of the timely payment of such Insurance Premiums.

 

4.3 ADDITIONAL IMPOUNDS .

Borrower shall deposit with Lender any additional Impounds in the manner prescribed in Exhibit E attached hereto.

 

4.4 CASH MANAGEMENT AGREEMENT .

 

  (a) Borrower shall enter into the Lockbox Agreement which shall govern the collection of Gross Income and transfer of Gross Income into an account established under the Cash Management Agreement.

 

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  (b) Borrower shall enter into the Cash Management Agreement which shall govern the holding and disbursement of Gross Income during the term of the Loan.

 

  (c) In the event of a Cash Trap Event Period (as defined in the Cash Management Agreement), all Excess Cash Flow (as defined in the Cash Management Agreement) shall be deposited into the Excess Cash Flow Reserve Account (as defined in the Cash Management Agreement), as more particularly set forth in Section 2.5(b) of the Cash Management Agreement.

 

4.5 GENERAL .

All deposits required to be made by Borrower under this Article 4 , including, without limitation, the additional impounds set forth on Exhibit E attached hereto, if any, are herein collectively called “ Impounds .” For so long as any of the Impounds required under this Section 4 are in effect and if Lender reasonably determines that an Impound was not estimated properly and a deficiency exists, Lender shall notify Borrower of such deficiency in writing and Borrower shall deposit or cause the applicable tenant to deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice. Lender shall have the right, upon prior advance written notice and subject to the tenant’s rights under its Lease, to enter upon the Property at all reasonable times, including without limitation, prior to any disbursement of Impounds, to inspect any work in process and/or completed for which Impounds are now or hereafter required, but Lender shall not be obligated to supervise or inspect any such work or to inform Borrower or any third party regarding any aspect of any such work. Borrower shall pay to Lender all reasonable out-of-pocket third party costs and expenses paid or incurred by Lender from time to time in connection with any request of Borrower for a disbursement of funds from the Impounds (other than the Tax Impound and the Insurance Impound). Borrower authorizes Lender to disburse directly to Lender, from the Impounds or from funds to be disbursed to Borrower from the Impounds, such sums as may be necessary, at any time and from time to time, to pay all such reasonable third-party costs and expenses.

 

4.6 GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS .

As security for payment of the Loan and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, all Borrower’s right, title and interest in and to all Impounds. Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Impound (or account in which such Impounds are held), or permit any lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements to be filed thereon, except those naming Lender as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of a Default, Lender may apply all or any part of the Impounds against the amounts outstanding under the Loan in any order and in any manner as Lender shall elect in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the liens and security interests securing the Loan or exercise its other rights under the Loan Documents. The Impounds shall not constitute trust funds and may be commingled with other monies held by Lender. All interest which accrues on the foregoing Impounds except for the Tax Impound and the Insurance Impound (for which no interest shall be paid) shall be at a rate established by Lender or its servicing agent, which may or may not be the highest rate then available, shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment in full of Borrower’s obligations under the Loan Documents, all remaining Impounds, if any, shall be promptly disbursed to Borrower.

 

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ARTICLE 5. REPRESENTATIONS AND WARRANTIES

 

5.1 REPRESENTATIONS AND WARRANTIES .

As a material inducement to Lender’s entry into this Agreement, each Borrower, as to itself, represents and warrants to Lender as of the Effective Date:

 

  (a) Legal Status . Each of Borrower and, if its managing Person such as a general partner, manager, managing member, or similar Person (each, a “ Managing Entity ”) is an entity formed or organized under the laws of any Governmental Authority, each such Managing Entity, is duly formed or organized and existing and in good standing under the laws of the state in which such entity is formed or organized. Borrower and, if applicable, its Managing Entity, is currently qualified or licensed (as applicable) and shall remain qualified or licensed to do business in each jurisdiction in which the nature of its business requires it to be so qualified or licensed under applicable law (including, as to Borrower and, if required by the law of such jurisdiction, its Managing Entity, the jurisdiction in which the Property is located).

 

  (b) Authorization and Validity . The execution and delivery of the Loan Documents to which Borrower is a party have been duly authorized by Borrower and the Loan Documents constitute valid and binding obligations of Borrower or the party which executed the same, enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights, or by the application of rules of equity.

 

  (c) Violations . The execution, delivery and performance by Borrower of each of the Loan Documents do not violate any provision of any law or regulation applicable to the Borrower and/or the Property, or result in any breach or default under any contract, obligation, indenture or other instrument to which Borrower is a party or by which Borrower is bound.

 

  (d) Litigation . There are no pending or to Borrower’s knowledge threatened (in writing) actions, claims, investigations, suits or proceedings before any Governmental Authority, court or administrative agency which would have a Material Adverse Effect other than as described on Exhibit D attached hereto.

 

  (e) Financial Statements . The financial statements of Borrower and of Guarantor previously delivered by Borrower to Lender: (i) are materially complete and correct; (ii) present fairly the financial condition of such party; and (iii) have been prepared in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan, or other accounting standards approved by Lender. Since the date of such financial statements, there has been no material adverse change in such financial condition, nor have any assets or properties reflected on such financial statements been sold, transferred, assigned, mortgaged, pledged or encumbered which would have a Material Adverse Effect, except as previously disclosed in writing by Borrower or Guarantor to Lender.

 

  (f) Reports . To the best of Borrower’s knowledge, all reports, documents, instruments and written information delivered by Borrower or Guarantor to Lender in connection with the Loan, as of the date delivered: (i) are correct in all material respects and sufficiently complete to give Lender accurate knowledge of their subject matter thereof; and (ii) do not contain any material misrepresentation of a material fact or omission of a material fact which omission makes the provided information misleading in any material respect.

 

  (g) Income Taxes . There are no pending assessments or adjustments of Borrower’s income tax payable with respect to any year.

 

  (h) Subordination . There is no agreement or instrument to which Borrower is a party or by which Borrower is bound that would require the subordination in right of payment of any of Borrower’s obligations under the Note to an obligation owed to another party.

 

  (i)

ERISA Matters . Borrower is not an employee benefit plan as defined in Section 3.(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), which is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Code (each of the foregoing hereinafter referred to individually and collectively as a “ Plan ”). Borrower’s assets do not constitute “plan assets” of any plan within the meaning of Department of Labor Regulation

 

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Section 2510.3-101. Borrower will not transfer or convey the Property to a Plan or to a person or entity whose assets constitute such “plan assets,” and Borrower will not be reconstituted as a Plan or as an entity whose assets constitute “plan assets.” No Lease is a Plan or an entity whose assets constitute such “plan assets,” and Borrower will not enter into any Lease with a Plan or an entity whose assets constitute such “plan assets.” With respect to the Loan, Borrower is acting on Borrower’s own behalf and not on account of or for the benefit of any Plan.

 

  (j) Leases; Rent Roll . Except as disclosed in the rent roll relating to the Property (the “ Rent Roll ”) and the aging report and tenant estoppels relating to the Property, each delivered to and approved by Lender in connection with the closing of the Loan, (a) Borrower is the sole owner of the entire lessor’s interest in the Leases; (b) the Leases are valid and enforceable and in full force and effect; (c) all of the Leases are arms-length agreements with bona fide, independent third parties; (d) to Borrower’s knowledge, no party under any Lease is in default; (e) to Borrower’s knowledge, all Payments due have been paid in full and no tenant is in arrears in its payment of any Payments, with the exception of Semifab Inc. (“ Semifab ”) as tenant of that certain property located at 5853 / 5863 Rue Ferrari in San Jose, California; (f) none of the Payments reserved in the Leases have been assigned or otherwise pledged or hypothecated by Borrower; (g) to Borrower’s knowledge, none of the Payments have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (h) the premises demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; (i) to Borrower’s knowledge, there exist no offsets or defenses to the payment of any portion of the Payments and Borrower has no monetary obligation to any tenant under any Lease except as set forth on Schedule 5.1(j)(1) attached hereto; (j) Borrower has received no notice from any tenant challenging the validity or enforceability of any Lease; (k) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (l) the Leases are valid and enforceable against Borrower and the tenants set forth therein; (m) other than with respect to those Leases set forth on Schedule 5.1(j)(2) attached hereto, no Lease contains an option to purchase, right of first refusal to purchase, right of first refusal to lease additional space at the Property, or any other similar provision; (n) no person or entity has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (o) to Borrower’s knowledge, no tenants have exercised any right to “go dark” that they may have under their Leases, with the exception of that certain Goodyear Property located at 201 King Mill Court in McDonough, Georgia; (p) all security deposits relating to the Leases reflected on the certified rent roll delivered to Lender have been collected by Borrower; (q) other than as identified on Exhibit E-2 attached hereto, no brokerage commissions or finders fees are due and payable regarding any Lease, with the exception of The Goodyear Tire & Rubber Company and Semifab; (r) each tenant is in actual, physical occupancy of the premises demised under its Lease and is paying full rent under its Lease; and (s) no tenant under any Major Lease is, to Borrower’s knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.

 

  (k) Compliance with Laws; Permits . To the Borrower’s knowledge, the Property complies in all material respects with all applicable federal, state and local laws, rules and regulations. Either Borrower or the tenant under the applicable Lease, as applicable, holds all permits, franchises, licenses and other authorizations necessary to enable the Property to be operated in compliance with applicable law.

 

  (l)

Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws . Borrower, SPE Party, Guarantor, Manager (if Manager is an Affiliate of Borrower), and to Borrower’s knowledge, after having made reasonable inquiry each Person owning a direct or indirect interest in (other than in any entity or company whose shares or securities are listed on a national securities exchange) Borrower, SPE Party, Guarantor and Manager (if Manager is an Affiliate of Borrower): (i) is not currently identified on the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control (currently is accessible through the internet website at www.treas.gov/ofac/t11sdn.pdf) or any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any legal requirements (or if such list

 

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does not exist, the similar list then being maintained by the United States), including trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States; (ii) is not a Person subject to any trade restriction, trade embargo, economic sanction, or other prohibition under federal law, including the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq ., and any executive orders or regulations promulgated thereunder; and (iii) is not in violation of Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism and the Uniting and Strengthening America by Providing Appropriate Tools Required in Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) ((i), (ii) and (iii), collectively, the “ Patriot Act ”), with the result that (A) the investment in Borrower, SPE Party, Guarantor or Manager (if Manager is an Affiliate of Borrower), as applicable (whether directly or indirectly), is prohibited by law, or (B) the Loan is in violation of law.

 

  (m) Conduct of Business . Borrower possesses all permits, franchises and licenses and all rights to all trademarks, trade names, patents and fictitious names, if any, necessary to enable Borrower to conduct the business(es) in which Borrower is now engaged in compliance with applicable law.

 

  (n) Solvency . None of the transactions contemplated by the Loan will be or have been made with an actual intent to hinder, delay or defraud any present or future creditors of Borrower, and Borrower, on the Effective Date, will have received fair and reasonably equivalent value in good faith for the grant of the liens or security interests effected by the Loan Documents. On the Effective Date, Borrower will be solvent and will not be rendered insolvent by the transactions contemplated by the Loan Documents. Borrower is able to pay its debts as they become due.

 

  (o) Not a Foreign Person . Borrower is not a “foreign person” within the meaning of § 1445(f)(3) of the Internal Revenue Code of 1986, as amended from time to time or any successor statute.

 

  (p) Permitted Encumbrances . None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the reasonably intended benefits of the security intended to be provided by this Agreement, the Mortgage, the Note and the other Loan Documents, materially and adversely affects the value or marketability of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

 

  (q) Intentionally omitted .

 

  (r) Federal Reserve Regulations . No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by legal requirements affecting Borrower or the Property or any part thereof or by the terms and conditions of this Agreement, the Mortgage, the Note or the other Loan Documents.

 

  (s) Investment Company Act . Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

 

  (t) Bank Holding Company . Borrower is not a “bank holding company” or a direct or indirect subsidiary of a “bank holding company” as defined in the Bank Holding Company Act of 1956, as amended, and Regulation Y thereunder of the Board of Governors of the Federal Reserve System.

 

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  (u) Intentionally omitted .

 

  (v) REA Representations . Except as set forth on third party estoppels obtained on or prior to the date hereof, (a) each REA is in full force and effect, (b) neither Borrower nor any other party to any REA is in default of a material obligation thereunder, (c) there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default of a material obligation thereunder and (d) except as set forth on Schedule 5.1(v) attached hereto, no REA has been modified, amended or supplemented.

 

  (w) Guarantor Representations . Borrower hereby represents and warrants that, as of the Effective Date and (except for the representations set forth in Sections 5.1(d) and (g)  hereof) continuing thereafter for the term of the Loan, the representations and warranties set forth in subsections 5.1(a) through (g), (l), (n) and (o) above are true and correct with respect to Guarantor, as the same are applicable to such party. Wherever the term “ Borrower ” is used in each of the foregoing subsections it shall be deemed to be “ Guarantor ”.

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Section 5.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement and in the other Loan Documents shall be deemed to have been relied upon by Lender on the date hereof notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

 

5.2 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPE STATUS .

Borrower hereby represents, warrants and covenants to Lender, with regard to Borrower, as follows:

 

  (a) Limited Purpose . The sole purpose to be conducted or promoted by Borrower since its organization is to engage in the following activities:

 

  (i) to acquire, own, hold, lease, operate, manage, maintain, develop and improve, the Property;

 

  (ii) to enter into and perform its obligations under the Loan Documents;

 

  (iii) to sell, transfer, service, convey, exchange, dispose of, pledge, assign, borrow money against, finance, refinance or otherwise deal with the Property to the extent permitted under the Loan Documents; and

 

  (iv) to engage in any lawful act or activity and to exercise any powers permitted to limited partnerships or limited liability companies, as applicable, formed under the laws of the State of Delaware that are related or incidental to and necessary, convenient or advisable for the accomplishment of the above mentioned purposes.

 

  (b) Limitations on Debt, Actions . Notwithstanding anything to the contrary in the Loan Documents or in any other document governing the formation, management or operation of Borrower, Borrower shall not , while the Loan is outstanding:

 

  (i) guarantee any obligation of any Person, including any Affiliate, or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (ii) engage, directly or indirectly, in any business other than as required or permitted to be performed under this Section 5.2 ;

 

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  (iii) incur, create or assume any indebtedness or liabilities other than, with respect to Borrower only, (A) the Loan, (B) obligations for which Lender is collecting an Impound, and (C) unsecured trade payables incurred in the ordinary course of its business that are related to the ownership and operation of the Property not to exceed two percent (2%) of the outstanding balance of the Loan, and which is not evidenced by a note and which must be paid within sixty (60) days and which are otherwise expressly permitted under the Loan Documents;

 

  (iv) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that Borrower may invest in those investments permitted under the Loan Documents;

 

  (v) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets outside the ordinary course of Borrower’s business;

 

  (vi) buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities);

 

  (vii) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity other than, with respect to SPE Party, its ownership interest in Borrower;

 

  (viii) own any asset or property other than the Property and incidental personal or intangible property necessary for the ownership or operation of the Property or, with respect to SPE Party, its ownership interest in Borrower; or

 

  (ix) take any Material Action without the unanimous written consent of all partners or members of Borrower or SPE Party, as applicable, including any Independent Managers of Holdco.

 

  (c) Separateness Covenants . In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate, Borrower represents and warrants that in the conduct of its operations since the Closing Date it has and will continue to observe the following covenants (collectively, the “ Separateness Provisions ”):

 

  (i) maintain books and records and bank accounts separate from those of any other Person;

 

  (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets;

 

  (iii) comply with all organizational formalities necessary to maintain its separate existence;

 

  (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;

 

  (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that Borrower’s assets may be included in a consolidated financial statement of its Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents;

 

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  (vi) prepare and file its own tax returns separate from those of any Person to the extent required by applicable law, and pay any taxes required to be paid by applicable law;

 

  (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates;

 

  (viii) not enter into any transaction with any Affiliate, other than that certain agreement with TRT NOIP GT Lease Holdco LLC, a Delaware limited liability company, with respect to rent payments, except on an arm’s-length basis on terms which are intrinsically fair and substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;

 

  (ix) conduct business in its own name, and, to the extent Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name;

 

  (x) not commingle its assets or funds with those of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (xi) not assume, guarantee or pay the debts or obligations of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (xii) correct any known misunderstanding as to its separate identity;

 

  (xiii) not permit any Affiliate to guarantee or pay its obligations (other than as set forth in the Loan Documents with respect to (x) other Borrowers and (y) the Guaranty and the Hazardous Materials Indemnity Agreement);

 

  (xiv) not make loans or advances to any other Person;

 

  (xv) pay its liabilities and expenses out of and to the extent of its own funds;

 

  (xvi) intentionally omitted;

 

  (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Property after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to Borrower; and

 

  (xviii) cause the managers, officers, employees, agents and other representatives of Borrower to act at all times with respect to Borrower consistently and in furtherance of the foregoing and in the best interests of Borrower.

Failure of Borrower to comply with any of the covenants contained in Sections 5.2(a), (b) or (c)  above or any other covenants contained in this Agreement shall not affect the status of Borrower as a separate legal entity.

 

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  (d) SPE Covenants in Borrower Organizational Documents . Borrower covenants and agrees to incorporate the provisions contained in this Section 5.2 into Borrower’s and SPE Party’s organizational documents and Borrower and SPE Party agree not to amend, modify or otherwise change its organizational documents with respect to the provisions of this Section 5.2 without the prior written consent of the Lender and the confirmation from the Rating Agencies that such amendment, modification or change will not result in a downgrading or qualification of the respective rating.

 

  (e) SPE Party . If Borrower is a limited partnership, each general partner of Borrower shall be a limited liability company, whose sole asset is its interest in Borrower, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above (“ GP SPE Party ”), modified to allow such SPE Party to act solely as a general partner of Borrower and to engage in no other business or activity. Such SPE Party shall at all times (A) continue to own no less than a 0.5% direct equity ownership interest in Borrower, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a) - (c)  above and this clause (e) , and (C) will cause Borrower to comply with the provisions of this Section 5.2 .

 

  (f) Intermediate Holdco . Each Intermediate Holdco shall be a limited liability company, whose sole asset is its direct or indirect interest in Borrower or GP SPE Party, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above, modified to allow such Intermediate Holdco to act solely as a direct or indirect equity owner of Borrower or GP SPE Party and to engage in no other business or activity. Such Intermediate Holdco shall at all times (A) continue to own no less than 100% direct or indirect equity ownership interest in any Borrower or GP SPE Party that is a limited liability company and 99% direct interest as a limited partner in any Borrower that is a limited partnership, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a)-(c)  above, and (C) will cause its subsidiaries to comply with the provisions of this Section 5.2 .

 

  (g) Holdco . Holdco shall be a limited liability company, whose sole asset is its direct or indirect interest in Borrower, SPE Party and Intermediate Holdco, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above, modified to allow such Holdco to act solely as a direct or indirect equity owner of Borrower, GP SPE Party and Intermediate Holdco and to engage in no other business or activity. Such Holdco shall at all times (A) continue to own no less than 100% direct or indirect equity ownership interest in each Borrower, GP SPE Party and Intermediate Holdco, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a)-(c)  above, and (C) will cause its subsidiaries to comply with the provisions of this Section 5.2 .

 

  (h)

Additional Requirements Applicable to each Borrower that is a Limited Liability Company, GP SPE Party and Intermediate Holdco . The limited liability company agreement (the “ Non-Holdco LLC Agreement ”) of each Borrower that is a limited liability company, GP SPE Party and Intermediate Holdco (the “ Non-Holdco ”) shall provide that (i) upon the occurrence of any event that causes the last remaining member of Non-Holdco (“ Non-Holdco Member ”) to cease to be the member of Non-Holdco (other than (A) upon an assignment by Non-Holdco Member of all of its limited liability company interest in Non-Holdco and the admission of the transferee in accordance with the Loan Documents and the Non-Holdco LLC Agreement or (B) the resignation of Non-Holdco Member and the admission of an additional member of Non-Holdco in accordance with the terms of the Loan Documents and the Non-Holdco LLC Agreement), a springing member, which shall be a Delaware corporation, shall, without any action of any other Person and simultaneously with the Non-Holdco Member ceasing to be the member of Non-Holdco automatically be admitted to Non-Holdco as a member with a zero percent (0%) economic interest (“ Corporate Special Member ”) and shall continue Non-Holdco without dissolution and (ii) Corporate Special Member may not resign from Non-Holdco or transfer its rights as Corporate Special Member unless (A) a successor special member has been admitted to Non-Holdco as a Corporate Special Member in accordance with requirements of Delaware law. The Non-Holdco

 

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LLC Agreement shall further provide that (i) Corporate Special Member shall automatically cease to be a member of Non-Holdco upon the admission to Non-Holdco of the first substitute member, (ii) Corporate Special Member shall be a member of Non-Holdco that has no interest in the profits, losses and capital of Non-Holdco and has no right to receive any distributions of the assets of Non-Holdco, (iii) pursuant to Section 18-301 of the Act, Corporate Special Member shall not be required to make any capital contributions to Non-Holdco and shall not receive a limited liability company interest in Non-Holdco, (iv) Corporate Special Member, in its capacity as Corporate Special Member, may not bind Non-Holdco and (v) except as required by any mandatory provision of the Act, Corporate Special Member shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Non-Holdco including, without limitation, the merger, consolidation or conversion of Non-Holdco. In order to implement the admission to Non-Holdco of Corporate Special Member, Corporate Special Member shall execute a counterpart to the Non-Holdco LLC Agreement. Prior to its admission to Non-Holdco as Corporate Special Member, Corporate Special Member shall not be a member of Non-Holdco.

 

  (i) Non-Consolidation Opinion . Borrower shall provide a bankruptcy non-consolidation opinion (“ Non-Consolidation Opinion ”) with respect to Borrower, its equity owners, Guarantor and such other parties as Lender may reasonably require, prepared by counsel and in form and substance as approved by Lender. All of the facts stated and all of the assumptions made in the Non-Consolidation Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects. Borrower has complied with and will comply and will cause the compliance with all of the assumptions made with respect to Borrower in the Non-Consolidation Opinion.

 

  (j) Independent Manager . As long as any obligation under the Loan is outstanding, Holdco at all times shall have at least two (2) Independent Managers (defined below). The organizational documents of Borrower, GP SPE Party, Intermediate Holdco and Holdco shall provide that (I) the board of managers or other governing body of Borrower, GP SPE Party, Intermediate Holdco or Holdco, as applicable, and the constituent members of Borrower and/or SPE Party, Intermediate Holdco or Holdco (the “ Constituent Members ”) shall not take any Material Action, unless at the time of such action there shall be at least two (2) Independent Managers engaged by Holdco as provided by the terms hereof and the organizational documents of Holdco; (II) any resignation, removal or replacement of any Independent Managers shall not be effective without two (2) Business Days’ prior written notice to Lender and the Rating Agencies accompanied by evidence that the replacement Independent Managers satisfies the applicable terms and conditions hereof and of the applicable organizational documents; (III) to the fullest extent permitted by applicable law, including Section 18-1101(c) of the Act, and notwithstanding any duty otherwise existing at law or in equity, the Independent Managers shall consider only the interests of the Constituent Members and Borrower, any GP SPE Party, Intermediate Holdco and Holdco, depending on which company is subject to the Material Action (including such entities’ respective creditors) in acting or otherwise voting on the Material Action (which such fiduciary duties to the Constituent Members, in each case, shall be deemed to apply solely to the extent of their respective economic interests in Borrower, GP SPE Party, Intermediate Holdco or Holdco (as applicable) exclusive of (x) all other interests (including, without limitation, all other interests of the Constituent Members), (y) the interests of other Affiliates of the Constituent Members, Borrower, GP SPE Party, Intermediate Holdco and Holdco and (z) the interests of any group of Affiliates of which the Constituent Members, Borrower, GP SPE Party, Intermediate Holdco and Holdco is a part)); (IV) other than as provided in subsection (III) above, the Independent Managers shall not have any fiduciary duties to any Constituent Members, any managers of Borrower, GP SPE Party, Intermediate Holdco or Holdco or any other Person; (V) the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing under applicable law; and (VI) to the fullest extent permitted by applicable law, including Section 18-1101(e) of the Act, an Independent Manager shall not be liable to Borrower, GP SPE Party, Intermediate Holdco, Holdco, or any Constituent Member or any other Person for breach of contract or breach of duties (including fiduciary duties), unless the Independent Manager acted in bad faith or engaged in willful misconduct.

 

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For purposes of this paragraph, a “special purpose entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of this Section 5.2.

 

  (k) Additional Requirements Applicable to Holdco . The limited liability company agreement of Holdco (the “ LLC Agreement ”) shall provide that (i) upon the occurrence of any event that causes the last remaining member of Holdco (“ Member ”) to cease to be the member of Holdco (other than (A) upon an assignment by Member of all of its limited liability company interest in Holdco and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement or (B) the resignation of Member and the admission of an additional member of Holdco in accordance with the terms of the Loan Documents and the LLC Agreement), any Person acting as Independent Manager of Holdco shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Holdco automatically be admitted to Holdco as a member with a zero percent (0%) economic interest (“ Special Member ”) and shall continue Holdco without dissolution and (ii) Special Member may not resign from Holdco or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Holdco as a Special Member in accordance with requirements of Delaware law and (B) after giving effect to such resignation or transfer, there remains at least two (2) Independent Managers of Holdco. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Holdco upon the admission to Holdco of the first substitute member, (ii) Special Member shall be a member of Holdco that has no interest in the profits, losses and capital of Holdco and has no right to receive any distributions of the assets of Holdco, (iii) pursuant to Section 18-301 of the Act, Special Member shall not be required to make any capital contributions to Holdco and shall not receive a limited liability company interest in Holdco, (iv) Special Member, in its capacity as Special Member, may not bind Holdco and (v) except as required by any mandatory provision of the Act, Special Member in its capacity as a Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Holdco including, without limitation, the merger, consolidation or conversion of Borrower or SPE Party; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Manager, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Holdco of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Holdco as Special Member, Special Member shall not be a member of Holdco, but Special Member may serve as an Independent Manager of Holdco.

 

  (l)

Additional Requirements Applicable to Limited Liability Companies . The limited liability company agreement of any limited liability company that is required hereby to comply with this Section 5.2 shall further provide, that upon the occurrence of any event that causes the Member or Non-Holdco Member to cease to be a member of such limited liability company to the fullest extent permitted by law, the personal representative of member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member or Non-Holdco Member in such limited liability company agree in writing (i) to continue such limited liability company and (ii) to an admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company effective as of the occurrence of the event that terminated the continued membership of Member or Non-Holdco Member in such limited liability company. Any action initiated by or brought against Member, Non-Holdco Member, Corporate Special Member or Special Member under any Creditors Rights Laws shall not cause Member, Non-Holdco Member, Corporate Special Member or Special Member to cease to be a member of such limited liability company and upon the occurrence of such an event, the business of such limited liability company shall continue without dissolution. The limited liability company agreement of such limited liability company shall provide that each of Member, Non-Holdco Member, Corporate Special Member and Special Member waives any right it might have to agree in writing to dissolve such limited liability company upon the occurrence of any action initiated by or brought against Member, Non-Holdco Member, Corporate Special Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member, Non-Holdco Member, Corporate Special Member or Special Member

 

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to cease to be a member of such limited liability company. For purposes of this subsection 5.2(h), “ Creditors Rights Laws ” shall mean any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

 

  (m) Compliance Certificates . Not later than ninety (90) days after and as of the end of each fiscal year and at any other time upon request from Lender, Borrower shall provide an Officer’s Certificate certifying as to Borrower’s continued compliance with the terms of this Section 5.2 and the terms of the Cash Management Agreement. Additionally, Borrower shall provide Lender with such other evidence of Borrower’s compliance with this Section 5.2 and the terms of the Cash Management Agreement as Lender may reasonably request from time to time.

 

  (n) Past Separateness . Northrop VA Borrower hereby represents that, from the date of its formation on April 10, 2003, through the Closing Date, that it:

 

  (i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “ Related Party ” and collectively, the “ Related Parties ”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;

 

  (ii) has paid all of its debts and liabilities from its assets;

 

  (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;

 

  (iv) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person, except in accordance with principals of consolidation in conformity with generally accepted accounting principals;

 

  (v) has not had its assets listed as assets on the financial statement of any other Person;

 

  (vi) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law) and, if it is a corporation, has not filed a consolidated federal income tax return with any other Person;

 

  (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party);

 

  (viii) has corrected any known misunderstanding regarding its status as a separate entity;

 

  (ix) has conducted all of its business and held all of its assets in its own name;

 

  (x) has not identified itself or any of its affiliates as a division or part of the other;

 

  (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, to the extent necessary to correct any known misunderstanding regarding its status as a separate entity;

 

  (xii) has not commingled its assets with those of any other Person and has held all of its assets in its own name;

 

  (xiii)

has not guaranteed or become obligated for the debts of any other Person, except with respect to that certain First Guaranty and Suretyship Agreement dated as of April 28, 2008 and that certain Second Guaranty and Suretyship Agreement dated as of April 28,

 

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2008, in each case guaranteeing obligations of iStar CTL Finance LLC, a Delaware limited liability company (the “ Subsidiary ”) under that certain Loan Agreement dated as of April 28, 2008, between the Subsidiary, as borrower, and General Electric Capital Corporation, as lender (the “ GE Loan Agreement ”), which guarantees are no longer outstanding, or as of the date hereof will not be, outstanding;

 

  (xiv) has not held itself out as being responsible for the debts or obligations of any other Person;

 

  (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party;

 

  (xvi) has not pledged its assets to secure the obligations of any other Person, except with respect to guaranteeing obligations of the Subsidiary under the GE Loan Agreement, which guarantees are no longer, or as of the date hereof will not be, outstanding, and no such pledge remains, or as of the date hereof will be, outstanding;

 

  (xvii) has maintained adequate capital in light of its contemplated business operations;

 

  (xviii) has maintained a sufficient number of employees, if any, in light of its contemplated business operations and has paid the salaries of its own employees, if any, from its own funds;

 

  (xix) has not owned any subsidiary or any equity interest in any other entity, except for [its limited liability company interests in the Subsidiary;

 

  (xx) has not incurred any indebtedness except indebtedness incurred pursuant to, or permitted under, the GE Loan Agreement that is no longer, or as of the date hereof, will not be, outstanding;

 

  (xxi) has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged or guarantees incurred pursuant to, or permitted under, the GE Loan Agreement that is no longer, or as of the date here, will not be, outstanding; and

 

  (xxii) none of the tenants holding leasehold interests with respect to the Property are affiliated with the Northrop VA Borrower.

 

5.3 REPRESENTATIONS; RECYCLED ENTITIES.

Northrop VA Borrower hereby represents that it:

 

  (a) is and always has been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business;

 

  (b) has no judgments or liens of any nature against it except for tax liens not yet due and liens created or imposed pursuant to or permitted under the GE Loan Agreement;

 

  (c) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate;

 

  (d) is not involved in any dispute with any taxing authority;

 

  (e) has paid all taxes which it owes;

 

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  (f) other than its limited liability company interest in the Subsidiary, has never owned any real property other than the property that is the subject of the current transaction and personal property necessary or incidental to its ownership or operation of the applicable Individual Property and has never engaged in any business other than the ownership and operation of the applicable Individual Property;

 

  (g) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full, reversed or otherwise fully resolved, which in either case would reasonably be expected to have a Material Adverse Effect;

 

  (h) has provided Lender with financial statements relating to the Northrop VA Borrower that are required under this Agreement; and

 

  (i) has no material contingent or actual obligations not related to the Property except indebtedness incurred pursuant to, or permitted under, the GE Loan Agreement.

ARTICLE 6. HAZARDOUS MATERIALS

 

6.1 HAZARDOUS MATERIALS INDEMNITY AGREEMENT .

Simultaneously herewith, Borrower and Guarantor have executed and delivered to Lender the Hazardous Materials Indemnity Agreement, which Hazardous Materials Indemnity Agreement is not secured by the Mortgage.

ARTICLE 7. COVENANTS OF BORROWER

 

7.1 COSTS AND EXPENSES .

Borrower shall, within ten (10) Business Days of demand, pay Lender all reasonable, out-of-pocket third party costs and expenses incurred by Lender in connection with: (a) the preparation of this Agreement and all other Loan Documents contemplated hereby; (b) any modifications and amendments, if any, of this Agreement or any of the other Loan Documents; (c) the processing of any Borrower requests made hereunder and under any of the other Loan Documents; (d) the enforcement or satisfaction by Lender of any of Borrower’s obligations under this Agreement and the other Loan Documents; or (e) otherwise protecting Lender’s interests under this Agreement and any other Loan Document, including, without limitation, in connection with any “work-out” of the Loan or any bankruptcy, insolvency, receivership, reorganization, rehabilitation, liquidation or other similar proceeding in respect of any Obligor or an assignment by any Obligor for the benefit of its creditors. For all purposes of this Agreement, Lender’s reasonable costs and expenses as described above (collectively, “ Costs and Expenses ”) shall also include, without limitation, as allocable to the Loan, all appraisal fees, cost engineering and inspection fees, reasonable third party legal fees and expenses, third party accounting fees, fees for the disbursement of any Impounds as set forth in Section 4.5 hereof, environmental and other consultant fees, auditor fees, and the cost to Lender of any title insurance premiums and title company charges (including for down dates, abstracts, tax certificates, title insurance endorsements required by Lender, and UCC financing statements, tax lien and litigation searches), surveys, recording, reconveyance and notary fees, any transfer and mortgage taxes, any rating agency fees and expenses for the initial securitization of the Loan, and any loan servicing and special servicing fees and expenses (including, without limitation, any “work-out” and/or liquidation fees), any interest payable to any servicer, any special servicer or any trustee pursuant to a trust and servicing agreement in respect of advances made by any of the foregoing; all compensation payable to any special servicer in connection with servicing the Loan when it is a specially serviced loan or its administration of any of the Property foreclosed upon; and, except for the regular monthly fee payable to the servicer, any other cost, fee or expense of the trust fund administering the Loan (including, but not limited to, reimbursements to the trustee thereof, the servicer, any special servicer, any certificate administrator thereunder and related Persons of each of the foregoing and indemnification to Persons entitled thereto pursuant to any trust and servicing agreement governing the Loan, taxes related to the Loan or the Property payable from the assets of the applicable trust fund, tax related expenses (other than the

 

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recurring expenses of filing or furnishing annual or other tax or information returns, reports or schedules, which will be paid by any certificate administrator) and the cost of various opinions of counsel required to be obtained in connection with servicing the Loan and administration of the trust fund). Borrower recognizes and agrees that formal written appraisals of the Property by a licensed independent appraiser may be required by Lender’s internal procedures and/or federal regulatory reporting requirements on an annual and/or specialized basis and that Lender may, at its option, require inspection of the Property by an independent supervising architect and/or cost engineering specialist at least semiannually. If any of the services described above are provided by an employee of Lender, Lender’s costs and expenses for such services shall be calculated in accordance with Lender’s standard charge for such services. Notwithstanding the foregoing, Borrower shall not be required to pay for more than one appraisal (or for the aforementioned architect and cost engineering specialist more than once) during the term of the Loan unless a Default occurs and is continuing or as otherwise required by law. In addition, if Borrower is undertaking a Restoration or is performing Work that requires the obtaining of a building permit, then Borrower shall pay the reasonable out-of-pocket costs of architect’s, engineers and other consultants retained by Lender to review the performance of such Restoration or Work. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, whenever any term or provision in any Loan Document provides that Borrower (or Guarantor) shall pay Lender’s costs or expenses, such term or provision shall be deemed to mean that Borrower (or Guarantor) shall be responsible to pay only those third party out of pocket costs and expenses actually incurred by Lender.

 

7.2 ERISA COMPLIANCE .

Borrower shall at all times comply with the provisions of ERISA with respect to any retirement or other employee benefit plan to which it is a party as employer, and as soon as possible after Borrower knows, or has reason to know, that any Reportable Event (as defined in ERISA) with respect to any such plan of Borrower has occurred, it shall furnish to Lender a written statement setting forth details as to such Reportable Event and the action, if any, which Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event furnished to the Pension Benefit Guaranty Corporation.

 

7.3 MANAGEMENT OF PROPERTY; BROKERAGE AGREEMENTS; OTHER AGREEMENTS .

 

  (a) The Property shall at all times be managed by a Qualified Manager pursuant to a management agreement reasonably approved by Lender and subordinated and assigned to Lender (unless a Property is being managed by a tenant other than pursuant to a separate management agreement). Without the prior written consent of Lender, Borrower shall not enter into any other third party property management contracts. Each such contract shall be expressly subordinated to the Loan on terms and conditions reasonably acceptable to Lender. Borrower shall engage leasing brokers listing contracts only on market terms, and all such contracts shall be expressly subordinated to the Loan and shall be entered into using a form that has been reasonably approved by Lender in writing.

 

  (b) Borrower shall not enter into or amend, modify or terminate any Material Contract without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.

 

  (c) In the event of the transfer of the management of the Property to an Affiliated Manager, such transfer shall be conditioned upon delivery to Lender of a new Non-Consolidation Opinion addressing such transfer.

 

7.4 COVENANTS - LEASES; MAJOR LEASES.

 

  (a) Leases . Borrower shall, at Borrower’s sole cost and expense:

 

  (i) perform in all material respects all obligations of the landlord under the Leases and use reasonable efforts to enforce performance by the tenants of all obligations of the tenants under the Leases;

 

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  (ii) use reasonable efforts to keep the Property leased at all times to tenants Borrower reasonably and in good faith believes are creditworthy, at rents not less than the fair market rental value (including, but not limited to, free or discounted rents to the extent the market so requires);

 

  (iii) promptly deliver to Lender upon execution, a copy of each Lease and all amendments thereto and waivers thereof; and

 

  (iv) subject to the rights and obligations set forth under the respective Leases, shall assign to Lender as additional collateral for the Loan any and all security deposits and letters of credit delivered by any tenant to Borrower, including, without limitation, the letter of credit (and any replacement or substitution thereof) delivered to Borrower pursuant to the Goodyear Lease.

Unless consented to in writing by Lender or otherwise permitted under any other provision of the Loan Documents (or unless provided under any existing Leases), Borrower shall not:

 

  (i) grant any tenant under any Lease any option, right of first refusal or other right to purchase all or any portion of the Property under any circumstances (provided, however, if the right to purchase is for an amount in excess of the Release Price of the Property, Lender’s consent right to any of the foregoing shall not be unreasonably withheld);

 

  (ii) grant any tenant under any Lease any right to prepay rent more than one (1) month in advance;

 

  (iii) except upon Lender’s request, execute any assignment of landlord’s interest in any Lease;

 

  (iv) collect rent or other sums due under any Lease in advance, other than to collect rent one (1) month in advance of the time when it becomes due; or

 

  (v) enter into any Lease which (aa) is not on fair market terms (which terms may include free or discounted rent and tenant allowances to the extent the market so requires); (bb) does not contain a provision requiring the tenant to execute and deliver to the landlord an estoppel certificate in form and substance reasonably satisfactory to the landlord promptly upon the landlord’s request; or (cc) does not contain subordination, non-disturbance and attornment provisions (including the requirement to provide notice and cure to landlord’s lender in the event of a landlord default) reasonably satisfactory to Lender.

 

  (b) Major Leases . In addition to the requirements of subsection (a)  above, with respect to any Major Lease (as defined below), unless consented to in writing by Lender (which consent shall not be unreasonably withheld) or otherwise permitted under any other provision of the Loan Documents, Borrower shall not:

 

  (i) enter into any Major Lease;

 

  (ii) terminate (unless the tenant is in monetary default thereunder), modify or amend a Major Lease (including the term thereof); or

 

  (iii) release or discharge the tenant or any guarantor under any Major Lease from any material obligation thereunder.

The term “ Major Lease ,” as used herein, shall mean any Lease, which is, at any time, a Lease of more than twenty-five percent (25%) of the total rentable area of any Individual Property, as reasonably determined by Lender. Borrower’s obligations with respect to Major Leases shall be governed by the provisions of this Section 7.4 .

 

  (c)

Lease Payment Event . Borrower shall deposit with Lender any sums received by Borrower in consideration of any termination, modification or amendment, or settlement (other than a

 

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settlement for the payment of past due rent) of any Lease or any release or discharge of any tenant under any Lease from any obligation thereunder (a “ Lease Payment Event ”) and any such sums received by Borrower shall be held in trust by Borrower for the benefit of Lender. Any such sums shall be promptly paid to Lender for deposit by Lender into the General TI Impound or an impound created specifically for the re-tenanting of such space. Provided no Default is continuing, any such amounts so deposited shall be returned to Borrower upon the re-leasing of such terminated space and from time to time upon incurrence of associated Leasing Costs.

 

  (d) Material Default . Borrower shall, at Borrower’s sole cost and expense, give Lender prompt written notice of any default by landlord or tenant under any Major Lease of which Borrower has knowledge and which has a Material Adverse Effect.

 

  (e) Lender Consent Required . Any Lease that does not satisfy the requirements of this Section 7.4 shall, subject to subsection (f)  below, require the prior written consent of Lender, such consent not to be unreasonably withheld. Notwithstanding the foregoing, any Major Lease shall, subject to subsection (f)  below, require the prior written consent of Lender. Any Lease that is not a Major Lease which satisfies the requirements of Section 7.4(a) shall not require Lender’s written consent.

 

  (f) Request for Approval; Failure to Deny Request . Lender’s failure to deny any written request by Borrower for Lender’s consent required under this Section 7.4 or to request additional information in response to such request within ten (10) Business Days after Lender’s receipt of such request (and all lease documents and information reasonably related thereto, “ Lease Documents ”) shall be deemed to constitute Lender’s consent to such request and Lease Documents; provided that said written request to Lender conspicuously state in 12 point or larger bold type “PURSUANT TO SECTION 7.4(f) OF THE LOAN AGREEMENT, BORROWER’S REQUEST FOR APPROVAL OF THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT DECLINE APPROVAL IN WRITING OR REQUEST ADDITIONAL INFORMATION REASONABLY RELATED THERETO IN WRITING WITHIN TEN (10) BUSINESS DAYS OF THIS LETTER, THE ENCLOSED LEASE AND RELATED INFORMATION AS DESCRIBED HEREIN.” In the event that Lender requests additional information to complete its review within the initial ten (10) Business Day period after Borrower’s written request for approval, Lender’s failure to deny such request by Borrower within five (5) Business Days after receipt of all of the information Lender has requested to complete its review shall be deemed to constitute Lender’s consent to such request; provided that all of the information requested by Lender is delivered and such information conspicuously states in 12 point or larger bold type “PURSUANT TO SECTION 7.4(f) OF THE LOAN AGREEMENT, BORROWER’S REQUEST FOR APPROVAL OF THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT DECLINE APPROVAL IN WRITING OR REQUEST ADDITIONAL INFORMATION REASONABLY RELATED THERETO IN WRITING WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS ADDITIONAL INFORMATION AS DESCRIBED HEREIN.”

 

  (g)

Security Deposits . As additional security for the Loan, Borrower has assigned to Lender all of Borrower’s right, title and interest in and to any security deposits or letters of credit delivered to Borrower by tenants at the Property as security for such tenants’ obligations under their respective Leases. Lender shall draw on any such letters of credit upon delivery to Lender of an Officer’s Certificate from Borrower specifying what conditions exist under the applicable Lease entitling the Borrower to draw on such letter of credit. Any letters of credit assigned to Lender and held by Lender pursuant to the terms hereof shall be held in accordance with the terms of the applicable Lease and all applicable laws. Lender shall return to Borrower any letters of credit held by Lender hereunder upon the expiration of the Lease applicable to such letter of credit (or sooner, if required by the terms of such Lease) or upon payment in full of the Loan, or upon the release of the applicable Property pursuant to the terms hereof (and Lender shall execute and deliver any and all assignment documents required or requested by the issuing bank in order to assign any such letters of credit to Borrower or any other entity requested by Borrower). Within ten (10) days of the date hereof, Borrower shall deliver to Lender executed documentation, in form and substance

 

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reasonably acceptable to Lender, from the respective issuers of the letters of credit evidencing the assignment of such letters of credit from Borrower to Lender (such obligation, collectively, the “ Letter of Credit Assignment ”).

 

7.5 ASSIGNMENT OF INDEMNIFICATION .

On the date hereof, Northrop VA Borrower and TROP collaterally assigned to Lender all of their respective right, title and interest in and to that certain Indemnity and Direction Agreement dated June 25, 2010 from iStar Financial Inc. to Northrop VA Borrower, TROP, TRT and TRT Acquisitions.

 

7.6 RIGHT OF SUBORDINATION .

Lender may at any time and from time to time by specific written instrument intended for such purpose, unilaterally subordinate the lien of the Mortgage to any Lease, without joinder or consent of, or notice to, Borrower, any tenant or any other Person. No subordination referred to in this Section 7.6 shall constitute a subordination to any lien or other encumbrance, whenever arising, or improve the right of any junior lienholder. Nothing herein shall be construed as subordinating the Mortgage to any Lease.

 

7.7 FURTHER ASSURANCES .

Upon Lender’s reasonable request and at Borrower’s sole cost and expense, Borrower shall execute, acknowledge and deliver any other instruments and perform and/or consent to any other acts necessary, desirable or proper, as reasonably determined by Lender, to carry out the purposes of this Agreement and the other Loan Documents or to perfect and preserve any security interests or liens created by the Loan Documents; provided, however, that no such instruments shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. The foregoing covenant includes, without limitation, Borrower’s consent to the revision of any Loan Document in order to correct any scrivener, clerical or similar errors or to modify any term, condition or provision thereof in order to satisfy the provisions of this Section 7.7 .

 

7.8 ASSIGNMENT .

Without the prior written consent of Lender, Borrower shall not (except as otherwise permitted under Articles 14 and 15 hereof) assign Borrower’s interest under any of the Loan Documents, or in any monies due or to become due thereunder, and any assignment without such consent shall be void.

 

7.9 EXISTENCE .

Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

 

7.10 COMPLIANCE WITH LAWS, ETC .

Borrower shall (a) comply in all material respects with all applicable laws, and all restrictive covenants of record affecting Borrower or the Property, performance, prospects, assets or operations of Borrower, and (b) seek to obtain as needed all permits necessary for its operations and maintain such in good standing.

 

7.11 LITIGATION .

Borrower shall promptly notify Lender in writing of any litigation pending or threatened in writing against Borrower (which is not covered by insurance) claiming damages in excess of Two Hundred and Fifty Thousand and No/100 Dollars ($250,000.00) and of all pending or threatened (in writing) litigation against Borrower if the aggregate damage claims against Borrower exceed One Million and No/100 Dollars ($1,000,000.00).

 

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7.12 MERGER, CONSOLIDATION, TRANSFER OF ASSETS .

Without limiting Borrower’s obligations under Section 5.2 , Article 14 and Article 15 of this Agreement, Borrower shall not: (a) merge or consolidate with any other entity; (b) make any substantial change in the nature of Borrower’s business or structure; (c) acquire all or substantially all of the assets of any other entity; or (d) sell, lease, assign, Transfer or otherwise dispose of a material part of Borrower’s assets, except in the ordinary course of Borrower’s business or as otherwise permitted hereunder (including under Section 7.4 and Article 15 hereof).

 

7.13 ACCOUNTING RECORDS .

Borrower shall maintain adequate books and records in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably approved by Lender. Borrower shall permit any representative of Lender, at any reasonable time and from time to time during business hours, upon reasonable advance written notice (but not more frequently than one time per calendar year unless a Default shall be continuing), to inspect, audit and examine such books and records and make copies of same.

 

7.14 PAYMENT OF TAXES AND CLAIMS .

Borrower shall pay (or cause to be paid) (a) all taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon (unless Lender is paying the same pursuant to the terms hereof or unless Borrower is contesting any such taxes, assessments or other governmental charges in good faith pursuant to Section 17.7 herein) and (b) except to the extent being contested in good faith by appropriate proceedings and for which appropriate reserves (which may be funds then held as Impounds, as determined in Lender’s reasonable discretion) have been established, all claims (including, without limitation, claims for labor, services, materials and supplies) for sums, which have become due and payable and which by law have or may become a lien or encumbrance, other than a judgment lien, upon any of Borrower’s properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto.

 

7.15 MAINTENANCE OF PROPERTY .

Borrower shall maintain (or cause to be maintained) in good repair, working order and condition in all material respects, excepting ordinary wear and tear, the Property and will make or cause to be made all appropriate repairs, renewals and replacements thereof.

 

7.16 QUALIFICATION, NAME; EXISTENCE .

Borrower shall qualify and remain qualified to do business in the jurisdiction in which the Property is located or in which the nature of its business requires it to be so qualified. Borrower will transact business solely in its own name. Borrower will not change its name, address or state of organization without giving prior written notice thereof to Lender. Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

 

7.17 ALTERATIONS .

Lender’s prior approval (which approval shall not be unreasonably withheld or delayed) shall be required in connection with any alterations to any Improvements (a) that would be reasonably expected to have a Material Adverse Effect, (b) the cost of which in the aggregate with all ongoing alterations is reasonably anticipated to exceed the Alteration Threshold or (c) that are structural in nature, except in each case for alterations or tenant improvements being made expressly pursuant to existing Leases entered into pursuant to Section 7.4 or existing as of the date hereof (and as such are deemed approved by Lender). If the total unpaid amounts incurred and to be incurred with respect to any alterations to the Improvements under subsection (b) above shall at any time exceed the Alteration Threshold (other than Improvements for which

 

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Borrower has deposited Impounds as required hereunder), Borrower shall, if required in writing by Lender, promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (i) cash, (ii) U.S. Obligations, (iii) other securities acceptable to Lender, or (iv) a completion bond acceptable to Lender. Such security shall be in an amount equal to the excess of the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements over the Alteration Threshold. In addition to Borrower’s obligation to post security if the alteration exceeds the Alteration Threshold, Borrower shall deliver to Lender title coverage reasonably acceptable to Lender to insure Lender for any mechanic’s liens filed in connection with such alteration to the extent such title coverage is available at a reasonable cost in the jurisdiction in which the Property is located. Any such security or excess funds shall be disbursed to Borrower to pay or reimburse Borrower for completed work related to such alterations, provided Borrower complies with the requirements for disbursements for work as set forth in Section 4.4.4(d) of Exhibit E (such work being performed in connection with such alterations being deemed “Work” in Section 4.4.4(d) of Exhibit E only for the purposes of disbursements pursuant to this Section 7.17 ). All such security or excess funds remaining after completion of the alteration shall be promptly returned to Borrower.

 

7.18 COMPLIANCE WITH PATRIOT ACT .

Borrower covenants and agrees that in the event Borrower receives any notice that Borrower, SPE Party, Guarantor, any property manager (if such property manager is an Affiliate of Borrower) (or any of their respective beneficial owners, affiliates or participants) or any Person that has an interest in the Property (including, without limitation, any tenant at the Property) become listed on any list promulgated under the Patriot Act or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall immediately notify Lender. At Lender’s option, it shall be a Default hereunder if Borrower, SPE Party or Guarantor becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering.

 

7.19 ACCESS TO PROPERTY .

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance written notice subject to the tenant’s rights under the applicable Lease.

 

7.20 NOTICE OF DEFAULT .

Borrower shall promptly advise Lender of any Material Adverse Effect or of the occurrence of any Default of which Borrower has knowledge.

 

7.21 COOPERATE IN LEGAL PROCEEDINGS .

Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the Note, the Mortgage or the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

 

7.22 PERFORMANCE BY BORROWER .

Borrower shall (a) in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement, the Mortgage, the Note and the other Loan Documents and (b) in a timely manner observe, perform and fulfill, in all material respects, its material obligations under any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications of changes thereto.

 

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7.23 ESTOPPEL CERTIFICATES .

 

  (a) Borrower Estoppel . After request by Lender, Borrower shall, within twenty (20) days of such request (but in any event, unless a Default is continuing, not more frequently than twice per calendar year), furnish Lender or any proposed assignee with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the terms of payment and maturity date of the Note, (v) the date installments of interest and/or principal were last paid, (vi) that, except as provided in such statement, no Default exists, (vii) that this Agreement, the Note, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification, (viii) to Borrower’s knowledge, whether any offsets or defenses exist against the obligations secured hereby and, if any are alleged to exist, a detailed description thereof, (ix) that all Leases are in full force and effect and have not been modified (or if modified, setting forth all modifications), (x) the date to which the Payments thereunder have been paid pursuant to the Leases, (xi) whether or not, to the best knowledge of Borrower, any of the lessees under the Leases are in default in any material respect under the Leases, and, if any of the lessees are in default, in any material respect setting forth the specific nature of all such defaults, (xii) the amount of security deposits held by Borrower under each Lease and that such amounts are consistent with the amounts required under each Lease, and (xiii) as to any other matters reasonably requested by Lender and reasonably related to the Leases, the obligations created and evidenced hereby and by the Mortgage or the Property.

 

  (b) Borrower shall use commercially reasonable efforts to deliver to Lender, promptly upon request, (but in any event not more frequently than one time per calendar year), duly executed estoppel certificates from any one or more tenants as required by Lender attesting to such facts regarding the Lease as Lender may require, including, but not limited to, attestations that each Lease covered thereby is in full force and effect with no defaults thereunder on the part of any party, that no rent under such Leases have been paid more than one (1) month in advance, except as security, and that the tenant claims no defense or offset against the full and timely performance of its obligations under the Lease.

 

  (c) In connection with a Secondary Market Transaction in connection with the Loan (or any portion thereof or interest therein), at Lender’s request, Borrower shall provide an estoppel certificate to any investor or any prospective investor in such form, substance and details as Lender, such investor or prospective investor may reasonably require.

 

  (d) Borrower shall use commercially reasonable efforts to deliver to Lender, upon request, estoppel certificates from each party under any REA in form and substance reasonably acceptable to Lender.

 

  (e) On an annual basis, Lender shall promptly provide information reasonably requested by Borrower to assist with Borrower’s annual auditing, provided such information is not confidential and is readily available. Any such information shall be provided without representation or warranty and Borrower shall pay any reasonable third party costs of Lender associated therewith.

 

7.24 ADVISOR .

TROP shall at all times be operated by an experienced professional advisory firm (or have internal management similar to what an advisory firm provides) regularly engaged in the operation and advisement of real estate investment trusts similar in experience and expertise to TRT.

 

7.25 NO JOINT ASSESSMENT .

Borrower shall not consent to or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

 

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7.26 REA COVENANTS .

Borrower agrees that, without the prior consent of Lender, Borrower will not enter into any new REA or execute modifications to any existing REA if such new REA or such modifications will have a Material Adverse Effect. Borrower shall enforce, shall comply with, and shall use commercially reasonable efforts to cause each of the parties to each REA to comply with all of the terms and conditions contained in such REA.

 

7.27 DEFERRED MAINTENANCE .

Within one hundred eighty (180) days of the date hereof, Borrower shall complete the repairs and replacements as described on Exhibit E-1 attached hereto (the “ Deferred Maintenance ”). Notwithstanding the foregoing, for those items set forth on Exhibit E-1 and identified as “Tenant Responsibility”, Borrower shall not be required to complete the Deferred Maintenance itself, but shall be required to enforce the terms of the applicable Lease to cause the tenant under such Lease to perform such repairs as and when required pursuant to the terms of the applicable Lease.

 

7.28 LOAN TO COST .

At all times while the Mezzanine Loan or any New Mezzanine Loan shall be in existence, the loan-to-cost ratio (calculated as the quotient of (i) the sum of (A) the outstanding principal balance of the Loan and (B) the outstanding principal balance of the Mezzanine Loan or the New Mezzanine Loan, as applicable, and (ii) the purchase price of all Properties) shall not exceed seventy-five percent (75%).

ARTICLE 8. FINANCIAL COVENANTS

 

8.1 STATEMENTS REQUIRED .

During the term of the Loan and while any portion of the Debt remains outstanding, unless Lender otherwise consents in writing or, if prior to a Securitization or during the continuance of a Default, requests on a more frequent basis, Borrower shall provide to Lender the following:

 

  (a) Annual Financial Statement . Within sixty (60) days of Lender’s written request therefor (but in no event earlier than sixty (60) days after the end of each fiscal year), an unaudited financial statement, signed and certified as true and correct by an authorized officer of Borrower showing all revenues and expenses and a balance sheet showing all assets and liabilities of Borrower relating to the Property for such fiscal year, provided, Borrower shall have a period of thirty (30) days from the delivery of such statements to provide any material adjustments to such statements. In addition, for so long at the Loan’s outstanding-principal balance exceeds $65,000,000, not later than one hundred twenty (120) days after and as of the end of each fiscal year, Borrower shall deliver to Lender an audited operating statement and balance sheet audited by a “Big Four” accounting firm or any other independent accounting firm reasonably satisfactory to Lender, showing all revenues and expenses relating to the Property for such fiscal year;

 

  (b) Monthly and Quarterly Operating Statements . Not later than ten (10) days after request by Lender during the period prior to any sale of the Loan, and thereafter not later than sixty (60) days after and as of the end of each calendar quarter, an unaudited operating statement, signed and certified as true and correct by an authorized officer of Borrower, showing all revenues and expenses during the most recent month (for which such statements are available) or quarter and year-to-date;

 

  (c) Intentionally Omitted .

 

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  (d) Annual Budget . Within ninety (90) days after the end of each fiscal year, an Annual Budget including a Capital Expenditures budget signed and dated by Borrower, and certified by Borrower to be a true, complete and correct copy of the Annual Budget adopted by Borrower for the applicable year; which, upon the occurrence and during the continuance of a Cash Trap Event Period shall be approved by Lender, which approval shall not be unreasonably withheld (such approved Annual Budget, an “ Approved Annual Budget ”). Until such new proposed budget is approved (if applicable), the prior existing Approved Annual Budget shall be used for the next calendar year, adjusted for customary increases of three percent (3%) per item.

 

  (e) Rent Roll . Not later than sixty (60) days after and as of the end of each calendar quarter (and together with the delivery of the quarterly statements set forth in 8.1(b)), a Rent Roll signed and dated by Borrower, provided, Borrower shall have a period of thirty (30) days from the delivery of such Rent Roll to provide any material adjustments to such Rent Roll;

 

  (f) Compliance Certificates . The Compliance Certificate described in Section 5.2(i) hereof;

 

  (g) Debt Yield . No later than sixty (60) days after the end of each quarter (and together with the delivery of the quarterly statements set forth in 8.1(b)), Borrower shall deliver to Lender an Officer’s Certificate setting forth Borrower’s calculation of the Debt Yield for the Loan, provided, Borrower shall have a period of thirty (30) days from the delivery of such statement to provide any material adjustments to such statement; and

 

  (h) Other Information . From time to time prior to a Securitization (or syndication of the Loan) or during the continuance of a Default, upon Lender’s delivery to Borrower of at least ten (10) days’ prior written notice, such other information with regard to Borrower, principals of Borrower, any Guarantor or the Property, as Lender may reasonably request in writing.

 

8.2 FORM; WARRANTY .

Borrower agrees that all financial statements to be delivered to Lender pursuant to this Article 8 shall: (a) be complete and correct in all material respects; (b) present fairly the financial condition of the party; (c) disclose all liabilities that are required to be reflected or reserved against; and (d) be prepared in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably acceptable to Lender. By its execution of this Agreement, Borrower shall be deemed to warrant and represent that, as of the date of delivery of any such financial statement, there has been no change in financial condition which would have a Material Adverse Effect, nor have any assets or properties been sold, transferred, assigned, mortgaged, pledged or encumbered since the date of such financial statement which would have a Material Adverse Effect, except as disclosed by Borrower in a writing delivered to Lender. Borrower agrees that all rent rolls and other information to be delivered to Lender pursuant to this Article 8 shall not contain any misrepresentation or omission of a material fact.

 

8.3 CHARGE FOR LATE DELIVERY .

If any financial statement, leasing schedule or other items required to be delivered to Lender pursuant to this Article 8 is not timely delivered, following written notice from Lender to Borrower, and such failure continues after ten (10) days of such written notice from Lender, Borrower shall promptly pay to Lender, as a late charge, the sum of One Thousand and No/100 Dollars ($1,000) per item. In addition, Borrower shall promptly pay to Lender an additional late charge of Five Hundred and No/100 Dollars ($500.00) per item for each full month during which such item remains undelivered following written notice from Lender. Borrower acknowledges that Lender will incur additional expenses as a result of any such late deliveries, which expenses would be impracticable to quantify, and that Borrower’s payments under this Article 8 are a reasonable estimate of such expenses. Borrower acknowledges further that payment by Borrower of this late charge does not in any manner affect or otherwise impair or waive any rights and remedies Lender may have hereunder, under the Loan Documents or under applicable law for any Default.

 

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8.4 MINIMUM NET WORTH AND LIQUIDITY .

For so long as any obligation under this Agreement or any of the other Loan Documents is outstanding (subject to subsection (y) below), the Guarantor shall maintain (a) a Tangible Net Worth in excess of $750,000,000 and (b) a minimum Liquidity, as reasonably determined by Lender, in excess of $10,000,000 (the “Minimum Net Worth Test”); provided, however, (x) in the event that during the period this Section 8.4 is effective the Guarantor fails to satisfy the Minimum Net Worth Test, the Borrower may cure such default by delivering to Lender either (i) one or more replacement or additional guarantors that are reasonably acceptable to Lender and which in the aggregate satisfy the Minimum Net Worth Test or (ii) deliver to Lender additional collateral, including a letter of credit, for the Borrower’s Debt Liability in such amount and of such type as is reasonably acceptable to Lender and (y) the terms and conditions of this Section 8.4 shall have no further force or effect if the Borrower’s Recourse Liability is terminated because of a LTV Decrease pursuant to Section 3.1 of this Agreement.

ARTICLE 9. DEFAULTS AND REMEDIES

 

9.1 DEFAULT .

For all purposes hereof, “ Default ” shall mean either an “ Optional Default ” (as defined below) or an “ Automatic Default ” (as defined below).

 

  (a) Optional Default . An “ Optional Default ” shall occur, at Lender’s option (exercised in its sole and absolute discretion), upon the occurrence of any of the following events:

 

  (i) Monetary . Borrower shall fail to (a) pay when due the P& I Payment Amount or sums which are payable on the Maturity Date, or (b) pay when due any other sums payable under the Note, this Agreement or any of the other Loan Documents and such failure continues after ten (10) days’ written notice of such failure from Lender to Borrower.

 

  (ii) Failure to Perform . Borrower shall fail to observe, perform or discharge any of Borrower’s obligations, covenants, conditions or agreements, other than Borrower’s payment obligations, under the Note, this Agreement or any of the other Loan Documents, and such failure shall remain uncured for forty-five (45) days after written notice thereof shall have been given to Borrower by Lender; provided, however, if any failure under this Section 9.1(a)(ii) shall be of such a nature that it cannot be cured or remedied within such forty-five (45) days, Borrower shall be entitled to a reasonable period of time to cure or remedy such failure (not to exceed one hundred twenty (120) days following the giving of such notice (subject to further extension by Lender, in Lender’s reasonable discretion)), provided Borrower commences the cure or remedy thereof within the forty-five (45) day period following the giving of notice and, thereafter, proceeds with diligence to complete such cure or remedy.

 

  (iii) Representations and Warranties . Any representation, warranty, certificate or other written statement (financial or otherwise) made or furnished by or, in the case of any financial statements of Borrower, on behalf of Borrower or Guarantor, to Lender under or in connection with any of the Loan Documents shall be false, incorrect, incomplete or misleading in any material respect when made or furnished.

 

  (iv) Intentionally Omitted .

 

  (v) Bankruptcy of Partners, Managing Member, and Guarantors . The occurrence of an event specified in subsections (b)(i) or (ii) herein as to any general partner or managing member of Borrower (other than any SPE Party) or Guarantor.

 

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  (vi) Interest Rate Protection Agreement . Borrower shall fail to observe, perform or discharge any of Borrower’s obligations, covenants, conditions or agreements under the Interest Rate Protection Agreement and otherwise comply with the covenants set forth in Section 2.2(i) and Section 2.8 hereof and such failure shall remain uncured for ten (10) days after written notice thereof shall have been given to Borrower by Lender.

 

  (b) Automatic Default . An “ Automatic Default ” shall occur automatically upon the occurrence of any of the following events:

 

  (i) Voluntary Bankruptcy, Insolvency, Dissolution . (aa) Borrower’s or SPE Party’s filing a petition for relief under the Bankruptcy Code, or under any other present or future state or federal law regarding bankruptcy, reorganization or other relief to debtors (collectively, “ Debtor Relief Law ”); or (bb) Borrower’s or SPE Party’s filing any pleading in any involuntary proceeding under the Bankruptcy Code or other Debtor Relief Law which admits the petition’s material allegations regarding Borrower’s or SPE Party’s insolvency; or (cc) Borrower’s or SPE Party’s making a general assignment for the benefit of creditors; or (dd) Borrower’s or SPE Party’s applying for, or the appointment of, a receiver, trustee, custodian or liquidator of Borrower, SPE Party or any of their property; or (ee) the filing by Borrower or SPE Party of a petition seeking the liquidation or dissolution of Borrower or SPE Party or the commencement of any other procedure to liquidate or dissolve Borrower or SPE Party.

 

  (ii) Involuntary Bankruptcy . Borrower’s or SPE Party’s failure to effect a full dismissal of any involuntary petition under the Bankruptcy Code or other Debtor Relief Law that is filed against Borrower or SPE Party, prior to the earlier of the entry of any order granting relief sought in the involuntary petition or ninety (90) days after the date of filing of the petition.

 

  (iii) REIT Status . If at any time during the term of the Loan TRT ceases to be a real estate investment trust under the Code.

 

9.2 ACCELERATION .

Upon the occurrence of an Optional Default, Lender may, at its option (exercised in its sole and absolute discretion), declare all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) immediately due and payable. Upon the occurrence of an Automatic Default, all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) shall automatically become immediately due and payable.

 

9.3 RIGHTS AND REMEDIES .

In addition to the other rights and remedies above and otherwise in this Agreement, at any time after a Default, Lender shall have all of the rights and remedies as set forth in the Mortgage, the other Loan Documents, under applicable law and in equity. All rights and remedies of Lender under this Agreement and the other Loan Documents are cumulative and are in addition to all rights and remedies provided by applicable law and in equity. Lender may enforce any such remedies or rights either successively or concurrently.

 

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ARTICLE 10. PREPAYMENT

 

10.1 PREPAYMENT .

 

  (a) Voluntary Prepayment . The voluntary prepayment of the Loan is permitted in full or in part at any time and from time to time. Any partial principal prepayment shall be applied to the Loan in accordance with the terms of this Agreement. As a condition to any voluntary prepayment, Borrower shall give Lender written notice (a “ Prepayment Notice ”) of its intent to prepay, which notice must be given at least twenty (20) and not more than ninety (90) days prior to the Business Day upon which prepayment is to be made and must specify the Business Day on which such prepayment is to be made, which Prepayment Notice may be revoked by Borrower on or prior to the prepayment date set forth in the Prepayment Notice and, upon the written request of Lender following the Borrower’s revocation of any such Prepayment Notice, the Borrower shall pay to Lender any and all of the Lender’s reasonably incurred third-party costs and expenses associated with the revoked Prepayment Notice. If any such notice is given, the outstanding Debt (or such portion of the Debt as is set forth by Borrower in the Prepayment Notice) shall be due and payable on the date specified therein together with (i) if the Loan is prepaid on any day other than the last day of any Rate Period, an amount equal to the interest which would otherwise have accrued on the amount prepaid (had such prepayment not occurred) during the period from and including the prepayment date to and including the last day of the Rate Period in which the prepayment occurred (“ Short Interest ”), (ii) any Breakage Costs (provided the same are not duplicative of any Short Interest paid in connection with such prepayment), (iii) any Interest Rate Protection Breakage Costs, and (iv) any and all other amounts then due and payable under the Note, this Agreement and the other Loan Documents. Borrower hereby agrees that in the event Borrower delivers a Prepayment Notice and fails to prepay the Loan in accordance with the Prepayment Notice and the terms of this Section 10.1 (a “ Prepayment Failure ”), Borrower shall indemnify Lender from and against, and shall be responsible for, all Breakage Costs and other reasonable third-party costs incurred by Lender with respect to any such Prepayment Failure.

 

  (b) Exclusion . Notwithstanding the foregoing or anything herein to the contrary, Borrower shall not be required to pay any prepayment fee in connection with any prepayment resulting from Lender’s application of any insurance proceeds or condemnation awards or scheduled P&I Payment Amount to the outstanding principal balance of the Loan; provided , however , that Borrower shall be required to pay any Breakage Costs (provided the same are not duplicative of any Short Interest paid in connection with such prepayment) and any Short Interest.

 

10.2 WAIVER .

Borrower agrees that if the Loan is prepaid, Borrower shall pay any Interest Rate Protection Breakage Costs, Breakage Costs (provided the same are not duplicative of any Short Interest paid in connection with such prepayment), and Short Interest as set forth above. Borrower hereby acknowledges that: (a) the agreement to pay any Interest Rate Protection Breakage Costs, the Breakage Costs, and Short Interest as set forth above for the right to prepay the Loan was separately negotiated with Lender; (b) the economic value of the various elements of this agreement was discussed; and (c) the consideration given by Borrower for the Loan was adjusted to reflect the specific agreement negotiated between Borrower and Lender and contained herein.

ARTICLE 11. PARTIAL RELEASE

 

11.1 BORROWER RIGHT TO RELEASE INDIVIDUAL PROPERTIES .

At any time (and from time to time) during the term of the Loan, Borrower may elect to release all (but not part of) any Individual Property, in accordance with the provisions of this Article 11 , at Borrower’s sole cost and expense provided that, notwithstanding the conditions set forth below, Borrower shall be required to release the Northrop VA Property if a Fixed Rate Loan Earn-Out Advance occurs (each such release, a “ Property Release ”).

 

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11.2 CONDITIONS .

Borrower shall only have the right to cause a Property Release if all of the following conditions have been satisfied:

 

  (a) Notice . Borrower shall give at least thirty (30) days written notice to Lender (which notice period shall, with respect to the release under this Article 11 of the Northrop VA Property, be ten (10) days prior-written notice if said property is being added to the Fixed-Rate Loan) specifying Borrower’s intended Release Date and the Individual Property or Properties affected. Simultaneously with the delivery of such notice, Borrower shall deposit with Lender (except in connection with the release under this Article 11 of the Northrop VA Property if said property is being added to the Fixed-Rate Loan, in which case the Borrower shall reimburse Lender’s reasonable and actual third-party expenses in connection with the Property Release at the time of the Property Release, for which expenses Borrower shall be solely responsible whether or not the Property Release shall be completed) an amount reasonably estimated by Lender to be sufficient to reimburse Lender’s anticipated reasonable and actual out of pocket expenses in connection with the Property Release, for which Borrower shall be solely responsible whether or not the Property Release shall be completed. If any such notice shall have been given by Borrower, then Borrower shall be permitted to revoke such notice in writing prior to the Release Date, provided Borrower pays all of Lender’s reasonable third party expenses incurred in connection with the proposed Property Release. Upon completion of the Property Release or revocation by Borrower as specified above, Lender shall return any surplus deposit to Borrower.

 

  (b) No Default . No Default shall exist either on the date of receipt of Borrower’s notice under Section 11.2(a) above or on the Release Date; provided , however , Borrower shall be permitted to conduct a Property Release, subject to all of the other conditions for a Property Release herein, while a Default exists if the release of the Property subject to the Property Release will cure such Default.

 

  (c) Payments . Borrower shall pay in full, on or before the Release Date (i) all unpaid interest accruing under the Loan to and including the Release Date, (ii) all other sums due under the Loan and the other Loan Documents on or before the Release Date, (iii) all reasonable and actual out of pocket escrow, closing, recording, legal, Rating Agency and other third party fees, costs and expenses paid or actually incurred by Lender and its agents in connection with the Property Release, the release of the lien of the Mortgage on the Property or the Individual Property, as the case may be, the review of the proposed property-release-related documentation, (iv) an administrative fee to Lender of $35,000 (which administrative fee shall not apply to the release under this Article 11 of the Northrop VA Property, if said property is being added to the Fixed-Rate Loan), and (v) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the Property Release, excluding income taxes. Lender shall cooperate with Borrower to effect a Property Release upon notice by Borrower of its decision to effectuate the same.

 

  (d) Deliveries . Borrower shall, at Borrower’s sole cost and expense, deliver the following items to Lender on or before the Release Date:

 

  (i) A certificate of Borrower certifying that all of the requirements of this Article 11 have been satisfied;

 

  (ii) If the Loan is held by a REMIC, written evidence from the Rating Agencies that the Property Release will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the Property Release for any securities representing interests in such REMIC which are then outstanding (such written-evidence requirement shall not apply to the release under this Article 11 of the Northrop VA Property if said property is being added to the Fixed-Rate Loan); and

 

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  (iii) Such other certificates, opinions, documents or instruments as are customary in commercial mortgage property release transactions to effect the Property Release.

 

  (e) Property Release Conditions . For a Property Release, the following additional conditions for a release of an Individual Property shall also have been satisfied:

 

  (i) Borrower shall deliver, or caused to be deliver, to Lender the applicable Release Price, provided , however , for the Northrop VA Property, if it is released from the encumbrance of this Loan (A)(1) within six (6) months of the date hereof, the Northrop VA Property’s release price shall be at 100% of its Allocated Loan Amount (which amount, if the Northrop VA Property is transferred to the Fixed Rate Loan in connection with a Fixed Rate Loan Earn-Out Advance, shall be paid by funds distributed pursuant to the Fixed Rate Loan Earn-Out Advance), (2) thereafter during the original term of this Loan and during the first Extension Term, the Northrop VA Property’s release price shall be at 100% of its Allocated Loan Amount as adjusted so that the Debt Yield immediately after such release of the Northrop VA Property is at least 12.7%, (3) during the second Extension Term, the Northrop VA Property’s release price shall be at 100% of its Allocated Loan Amount as adjusted so that the Debt Yield immediately after such release of the Northrop VA Property is at least 13.5%, and (4) during the third Extension Term, the Northrop VA Property’s release price shall be at 100% of its Allocated Loan Amount as adjusted so that the Debt Yield immediately after such release of the Northrop VA Property is at least 13.75% and (B) to be encumbered by the Fixed Rate Loan then the Release Price shall be directly funded by proceeds from the Fixed Rate Loan.

 

  (ii) If the Loan has been securitized, (A) the Property Release shall not cause any of the Rating Agencies to withdraw, qualify or downgrade the then-applicable rating on any security issued in connection with such securitization and, if required by Lender, Lender shall have received written confirmation of this from the applicable Rating Agencies; and (B) the Property Release shall not (1) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G-2(b) or (2) cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code, and, if required by Lender, Lender shall have received an opinion of counsel to this effect, in form and content and issued by counsel satisfactory to Lender;

 

  (iii) Immediately following the Property Release, if the Individual Property subject to the Property Release (the “ Released Property ”) was covered by a title policy which covered any other Property not released, Borrower shall have delivered any title endorsements or updated title reports as Lender may reasonably require with respect to any of the Properties not being released; and

 

  (iv) All conditions, if any, for release of the Property Release under the Mezzanine Loan Agreement, if any, shall have been satisfied or will be satisfied simultaneously therewith.

 

  (f) Release of Lien . Upon satisfaction of all conditions specified in this Article 11 , the Released Property shall be released from the lien of the Mortgage and the other Loan Documents. Lender shall, at Borrower’s expense, prepare, execute and deliver any instruments reasonably necessary to release the lien of the Mortgage and other Loan Documents from the Released Property.

 

  (g) Transfer of Reserves . With respect to the release under this Article 11 of the Northrop VA Property to the Fixed-Rate Loan, any and all funds held in Impounds that are associated with the Northrop VA Property shall be transferred by Lender to the lender for the Fixed Rate Loan and held in accordance with the loan documents governing said Fixed Rate Loan.

 

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ARTICLE 12. INSURANCE

 

12.1 REQUIRED INSURANCE .

Throughout the term of the Loan, Borrower shall maintain the following types of insurance in the form and content as set forth in this Article 12 .

 

  (a) Casualty Insurance . Borrower, at its sole cost and expense, will keep the Property and the Collateral insured during the entire term of the Loan, for the mutual benefit of Borrower and Lender, against fire and such other hazards that would be covered by an insurance policy issued on a Special Form Cause of Loss - “ All Risk ” basis (the “ Casualty Policy ”). The Casualty Policy shall:

 

  (i) include coverage for, and specifically state that coverage is provided for: Windstorm Coverage (as defined in Section 12.1(b)(iii) , hail, Terrorism Coverage (as defined in Section 12.5 below) and, mold;

 

  (ii) provide coverage in an amount not less than full replacement value, without deduction for depreciation or co-insurance;

 

  (iii) have a deductible no greater than Twenty-Five Thousand and No/100 Dollars ($25,000.00) per occurrence, with the exception of a deductible no greater than (i) One-Hundred Thousand and No/100 Dollars ($100,000.00) for any flood location within the 100-500 year flood plan or (ii) Fifty Thousand and No/100 Dollars ($50,000.00) per occurrence specific to Special Flood Hazard NFIP coverage for buildings located in Special Flood Hazard zones (other than a deductible of no greater than five percent (5%) of the replacement cost of the Property and the Collateral for Windstorm Coverage, Special Excess of NFIP Flood Hazard Coverage for buildings located in Special Flood Hazard Zones and earthquake insurance) and no more than five percent (5%) of underwritten net cash flow as determined by Lender in accordance with its internal underwriting procedures, and contain a replacement cost endorsement;

 

  (iv) contain a lender’s loss payable endorsement containing provisions equivalent to those provisions contained in Form 438BFU and naming Lender as the mortgagee (unless otherwise agreed by Lender in its sole discretion). If the lender’s loss payable endorsement is not provided on Form 438BFU or ISO Form CP1218, the applicable form number shall be referenced on the proposed endorsement and such endorsement must be acceptable to Lender;

 

  (v) be evidenced by an Accord 27 (Form Date: March, 1993), an Accord 28 (2003/10) or equivalent form, or such other form acceptable to Lender in its sole discretion in favor of Lender, as mortgagee and loss payee, and such evidence shall be provided to Lender. Borrower shall also provide Lender with a complete copy of the Casualty Policy promptly upon issuance but no later than sixty (60) days from the closing of the Loan;

 

  (vi) contain a so called “ Agreed Amount ” endorsement or a “ No Co-Insurance ” clause unless otherwise agreed by Lender in its sole and absolute discretion;

 

  (vii) Building Ordinance or Law Coverage sufficient to compensate for the cost of demolition, increased costs of construction and loss to any undamaged portion of the improvements at the Property if the current use of the Property or the

 

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improvements thereon are “nonconforming” or “legal nonconforming” or become “nonconforming” or “legal nonconforming” pursuant to the applicable zoning regulations and if full rebuildability and continued full use following a casualty is otherwise not permitted under such zoning regulations; and

 

  (viii) except as provided in subsection(a)(vi) above, not contain any co-insurance clauses or provisions that would reduce the coverage available under the Casualty Policy.

 

  (b) Other Property Insurance Coverage . Borrower must also provide the following additional forms of insurance coverage, whether as additional coverage under the Casualty Policy or by purchasing one or more additional policies, which additional coverage or policies shall comply with all of the requirements contained herein applicable to the Casualty Policy unless otherwise provided below:

 

  (i) Rental loss and/or business interruption insurance for a period of (i) twelve (12) months for all properties other than the Northrop VA and Sybase Properties or (ii) eighteen (18) months for the Northrop VA and Sybase Properties, in an amount sufficient such that the insurer would not deem Borrower a co-insurer under the policy, (A) with loss payable to Lender; (B) which provides that after the physical loss to the Property and Collateral occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either return to the same level that existed prior to the loss, or the expiration of (i) twelve (12) months for all properties other than the Northrop VA and Sybase Properties or (ii) eighteen (18) months for the Northrop VA and Sybase Properties, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (C) if required by Lender from time to time, which contains an extended period of indemnity endorsement which provides that after the physical loss to such Property and Collateral has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property and Collateral are repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such rental loss and/or business interruption insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents, except to the extent such amounts are actually paid out of the proceeds of such rental loss and/or business interruption insurance, as applicable. Any rental loss and/or business interruption insurance proceeds shall be held by Lender and disbursed in accordance with Section 12 of this Agreement;

 

  (ii) Comprehensive boiler and machinery coverage, without exclusion for explosion, covering all boilers or other pressure vessels, machinery and equipment located at the Property, in an amount not less than the full replacement value thereof and of the building or buildings housing the same and for “loss of income;”

 

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  (iii) Pursuant to Section 12.1(a)(i) , coverage for windstorm (“ Windstorm Coverage ”), which Windstorm Coverage shall comply with each of the applicable requirements for insurance policies set forth in this Section 12 (including, without limitation, those relating to deductibles); provided, that, Lender, at Lender’s option, may require Borrower to obtain or cause to be obtained the Windstorm Coverage with higher deductibles than set forth above;

 

  (iv) At all times during which structural construction, repairs or alterations are being made with respect to the improvements on the Property, and only if the Property and liability coverage forms do not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the below mentioned Liability Policy; and (B) the insurance provided for in subsection (a)  above written in a so called Builder’s Risk Completed Value form, including coverage for 100% of the total construction costs (1) on a non reporting basis, (2) against “all risks” insured against pursuant to subsection (a)  above, and (3) including permission to occupy the Property; and

 

  (v) Earthquake insurance in any area of increased risk (20% PML or higher). Lender may change its requirements for Earthquake Insurance from time to time based on (i) review of a current probable maximum loss seismic study, to be prepared at Borrower’s expense (up to once every two years), forecasting the expected damage from any event anticipated to reoccur once in 475 years, on a 50%-certain statistical basis; (ii) actual and potential losses at any other locations the same earthquake insurance covers and sharing the policy’s occurrence and annual aggregate limits of available coverage; and (iii) the amount of lost business or rental income to be expected during Restoration of the Property.

 

  (c) Liability Insurance . Borrower, at its sole cost and expense and during the entire term of the Loan, shall maintain:

 

  (i) a Commercial General Liability Coverage Policy on the so-called “occurrence” form (“ Liability Policy ”) that includes coverage for contractual damages, property damage, personal and bodily injuries (including death resulting therefrom) and provide for a per occurrence minimum limit of liability of not less than $1,000,000 and a general aggregate minimum limit of liability of not less than $2,000,000 without any deductible or self-insured retention unless otherwise agreed by Lender in its sole and absolute discretion (to continue at not less than the aforesaid limits until reasonably required to be changed by Lender pursuant to Section 12.2 hereof), and such other liability insurance as is reasonably requested by Lender. The Liability Policy shall cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; and (4) contractual liability coverage with regard to occurrences for property damage, bodily injury, personal injury and death for so-called “insured” contracts as defined in the Liability Policy. Further, the policy shall include coverage for, and shall specifically state that coverage for, Terrorism Coverage and mold are not excluded. Borrower shall provide a Certificate of Liability Insurance that states the coverage limits per occurrence and indicates the full name of Borrower as a named insured, rather than as an additional insured; and

 

  (ii) umbrella liability insurance in an amount not less than $50,000,000 per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (i) above.

 

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  (d) Blanket Insurance . Unless otherwise agreed to by Lender in its sole and absolute discretion, blanket policies shall be permitted only if (i) coverage will not be affected by any loss on other properties covered by the policies, (ii) the policy specifically allocates to each Property the amount of coverage from time to time required hereunder or shall otherwise provide the same protection as would a separate policy, and (iii) such policy is approved in advance in writing by Lender, and Lender’s interest is included therein as provided in this Agreement, (iv) such policy is otherwise issued in accordance with the terms of Section 12 of this Agreement, and (v) any changes or amendments made hereafter to such policy (including any endorsements and riders) are subject to the approval of Lender or its servicing agent. At all times, approval of any blanket policy remains subject to review and approval by Lender based on the schedule of locations and values.

 

12.2 ADDITIONAL INSURANCE .

In addition to the foregoing, Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) such additional insurance policies and coverage (i) as may be required pursuant to any and all agreements, declarations, covenants, and/or other arrangements to which Borrower is party or to which Borrower or the Property is subject, including, without limitation, any declarations of covenants, conditions and restrictions or similar covenants and/or restrictions affecting the Property, franchise agreements, licenses, leases, codes or ordinances, (ii) as set forth on Exhibit G attached hereto, and (iii) such other insurance as may from time to time be reasonably required by Lender in order to protect its interests and/or to satisfy then current market conditions and requirements.

 

12.3 POLICY REQUIREMENTS .

The Casualty Policy, the Liability Policy and each other insurance policy required hereunder (each, a “ Policy ” and, collectively, the “ Policies ”) shall:

 

  (a) provide that (i) Lender shall receive thirty (30) days’ notice of any modification, cancellation or expiration of the Policy, (ii) Lender shall receive ten (10) days’ notice of any nonpayment, and (iii) any such modification, cancellation or expiration without such notice shall not be effective against Lender;

 

  (b) unless otherwise agreed by Lender in its sole discretion and except for flood and earthquake insurance coverage, be issued by an insurer having a minimum rating of “A” or better from S&P, and, in the event of a ratings downgrade from S&P, Borrower shall be required to replace said insurer(s) with a carrier satisfying the claims paying ability ratings required by this subsection (b);

 

  (c) each insurer shall be admitted or authorized to do business in the state where the Property is located or shall otherwise be acceptable to Lender in its sole and absolute discretion;

 

  (d) be evidenced by a certificate or other documents in form and substance acceptable to Lender, and shall be delivered to Lender on or before the date hereof;

 

  (e) specifically state on the evidence thereof provided to Lender in accordance with this Article 12 , any exclusion or condition which is a deviation from standard insurance language or forms;

 

  (f) shall contain clauses or endorsements to the effect that the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ prior written notice to Lender and any other party named therein as an additional insured;

 

  (g) shall contain an endorsement providing that no policy shall be impaired or invalidated by virtue of any act, failure to act, negligence of or violation of declarations, warranties or conditions contained in such policy by Borrower, Lender or any other named insured, additional insured or loss payee, except for the willful misconduct of Lender knowingly in violation of the conditions of such policy; and

 

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  (h) shall contain clauses or endorsements to the effect that no act or negligence of Borrower, or anyone acting for Borrower, or of any tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned.

 

12.4 MAINTENANCE OF INSURANCE .

Borrower shall:

 

  (a) maintain, or cause to be maintained, all required insurance throughout the term of the Loan and while any obligations of Borrower to Lender under any of the Loan Documents remain outstanding, at Borrower’s expense, with companies, and in form and substance satisfactory to Lender. Insurance coverage as required hereunder which is provided by a tenant at the Property pursuant to a Lease shall be acceptable coverage hereunder provided Lender has reasonably approved such coverage and all of the requirements for such insurance coverage in this Article 12 are satisfied, including, but not limited to, Section 12.6(b) ;

 

  (b) as a condition to Lender entering into the Loan Documents and making the Loan, and as and when in the future requested by Lender, forward a paid receipt to Lender with respect to all insurance coverage required under this Agreement, and such receipt shall indicate the policy period, the property location and the annual premium delineated with respect to each type of coverage provided by such policy. Lender, by reason of accepting, rejecting, approving or obtaining insurance, shall not incur any liability for: (A) the existence, nonexistence, form or legal sufficiency of any insurance, (B) the solvency of any insurer or (C) the payment of claims;

 

  (c) give Lender written notice of the cancellation of any Policies within five (5) days of receipt of any such notice of cancellation from the insurer; and

 

  (d) deliver to Lender, not less than thirty (30) days prior to the expiration dates of the Policies (or certificates of insurance) theretofore furnished to Lender, renewal Policies (or certificates of insurance) accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder.

 

12.5 TERRORISM COVERAGE .

Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) coverage for Acts of Terror (the “ Terrorism Coverage ”), which such Terrorism Coverage shall comply with each of the applicable requirements for the Policies set forth above (including, without limitation, those relating to deductibles, except as otherwise agreed to by Lender in its sole and absolute discretion). As used herein, the term “ Terrorism Coverage ” shall mean coverage for Acts of Terror. As used above, “ Acts of Terror ” shall mean acts of terror or similar acts of sabotage; provided, that, for so long as the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (as the same may be further modified, amended, or extended, collectively, “ TRIPRA ”), remains in full force and effect, the provisions of TRIPRA shall determine what is deemed to be included within this definition of “ Acts of Terror ”. Notwithstanding the foregoing, in no event shall Borrower be required to pay annual premiums in excess of the TC Cap (defined below) in order to obtain the Terrorism Coverage (but Borrower shall be obligated to purchase such portion of the Terrorism Coverage as is obtainable by payment of annual premiums equal to the TC Cap). As used above, “ TC Cap ” shall mean a premium in amount to provide coverage equal to the outstanding principal balance of the Loan.

 

12.6 CERTAIN RIGHTS OF LENDER .

 

  (a)

If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, with written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including obtaining such insurance coverage as Lender in its reasonable discretion deems appropriate. All premiums

 

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incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate;

 

  (b) Borrower shall assign the Policies or proofs of insurance to Lender, in such manner and form that Lender and its successors and assigns shall at all times have and hold the same as security for the payment of the Loan. Lender shall be named as “Mortgagee” and “Loss Payee” on all Property Policies and as “Additional Insured” on any Liability Policy. If Borrower elects to obtain any insurance which is not required under this Agreement, all related insurance policies shall be endorsed in compliance with this Section 12.6(b) , and such additional insurance shall not be canceled without prior notice to Lender. From time to time upon Lender’s request, Borrower shall identify to Lender all insurance maintained by Borrower with respect to the Property. The proceeds of Policies coming into the possession of Lender shall not be deemed trust funds, and Lender shall be entitled to apply such proceeds as provided in Article 12 of this Agreement; and

 

  (c) Borrower shall give immediate written notice of any loss to the insurance carrier and to Lender. Borrower hereby irrevocably authorizes and empowers Lender, as attorney in fact for Borrower coupled with an interest, to notify any of Borrower’s insurance carriers to add Lender as a loss payee, mortgagee insured or additional insured, as the case may be, to any policy maintained by Borrower (regardless of whether such policy is required under this Agreement), to make proof of loss, to adjust and compromise any claim under insurance policies, to appear in and prosecute any action arising from such Policies, to collect and receive insurance proceeds, and to deduct therefrom Lender’s reasonable expenses incurred in the collection of such proceeds. Nothing contained in this Section 12.6(c) , however, shall require Lender to incur any expense or take any action hereunder.

 

12.7 CASUALTY AND CONDEMNATION; RESTORATION PROCEEDS .

 

  (a)

Any and all awards, compensation, reimbursement, damages, proceeds, settlements, and other payments or relief paid or to be paid, together with all rights and causes of action relating to or arising from, (i) any insurance policy maintained by, on behalf of, or by any tenant of the Property for the benefit of, Borrower following any damage, destruction, casualty or loss to all or any portion of the Property (a “ Casualty ”, and such proceeds, “ Insurance Proceeds ”) or (ii) any temporary or permanent taking or voluntary conveyance of all or part of the Property, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority whether or not the same shall have actually been commenced (a “ Taking ”, and such proceeds, “ Condemnation Proceeds ”, and together with Insurance Proceeds, collectively, “ Restoration Proceeds ”) are hereby assigned to Lender as additional collateral security hereunder subject to the Lien of the Mortgage, to be applied in accordance with this Article 12 . Borrower shall promptly notify Lender of any Casualty or Taking, but in no event later than ten (10) days thereafter. Subject to the terms and provisions of the Leases, Lender shall be entitled to receive and collect all Restoration Proceeds, and Borrower shall instruct and cause the issuer of each policy of insurance described herein and any applicable Governmental Authority to deliver to Lender all Restoration Proceeds. Borrower shall execute such further assignments of the Restoration Proceeds as Lender may from time to time reasonably require. Notwithstanding the foregoing, if the Restoration Proceeds, less the amount of Lender’s reasonable costs and expenses (including attorneys’ fees and costs) incurred in collecting the same (the “ Net Restoration Proceeds ”), are $2,000,000 or less (the “ Restoration Proceeds Threshold ”), provided no Default then exists, Lender shall disburse such Net Restoration Proceeds directly to Borrower and Borrower must use such Net Restoration Proceeds to restore and/or repair the Property. All Insurance Proceeds received by Borrower or Lender in respect of business interruption coverage, and all Condemnation Proceeds received with respect to a temporary Taking available to Borrower, shall be deposited in a segregated escrow account with Lender or its servicer, as applicable, and Lender shall estimate the number of months required for Borrower to restore the damage caused such Casualty or replace cash flow interrupted by such temporary Taking, as applicable, and shall to the extent of available proceeds (and subject

 

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to any other applicable requirements herein) divide the aggregate proceeds by such number of months, and, provided no Default then exists, shall disburse a monthly installment thereof to the Restricted Account each such month to be held and disbursed in accordance with the terms of the Cash Management Agreement. Subject to Lender’s rights under Section 12.8 , provided no Default has occurred and is continuing and the Restoration has been completed in accordance with this Agreement, any Net Restoration Proceeds available to Borrower for Restoration, to the extent not used by Borrower in connection with, or to the extent they exceed the cost of such Restoration and any reasonable costs incurred by Lender, shall be paid to Borrower.

 

  (b) Lender shall be entitled at its option to participate in any compromise, adjustment or settlement in connection with (i) any insurance policy claims relating to any Casualty, and (ii) any Taking in an amount in controversy, in either case, in excess of the Restoration Proceeds Threshold, and Borrower shall within ten (10) Business Days after request therefor reimburse Lender for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with such participation. Borrower shall not make any compromise, adjustment or settlement in connection with any such claim in excess of the Restoration Proceeds Threshold or if a Default then exists without the prior written approval of Lender, which approval shall not be unreasonably withheld. Borrower shall not make any compromise, adjustment or settlement in connection with any claim unless same is commercially reasonable.

 

  (c) If and to the extent Restoration Proceeds are not required to be made available to Borrower to be used for the Restoration of the Property affected by the Casualty or Taking, as applicable, pursuant to this Agreement, Lender shall be entitled, without Borrower’s consent but subject to the rights of the tenant under any Lease, to apply such Restoration Proceeds or the balance thereof, at Lender’s option either (i) to the full or partial payment or prepayment of the Loan, or (ii) to the Restoration of all or any part of the Property affected by the Casualty or Taking, as applicable. In the event that a Casualty or Taking exceeds the thresholds set forth in Section 12.8(d) hereof and Lender has elected to apply the Restoration Proceeds thereof to the outstanding principal balance of the Loan, Borrower shall be permitted to release the affected Property from the Lien of the Mortgage.

 

12.8 RESTORATION .

Borrower shall restore and repair (or shall cause the restoration and repair of) the Property or any part thereof now or hereafter damaged or destroyed by any Casualty or affected by any Taking; provided, however, that if the Casualty is not insured against or insurable, Borrower shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in Section 12.7 , Lender agrees that Lender shall make the Net Restoration Proceeds (other than business interruption insurance proceeds, which shall be held and disbursed as provided in Section 12.7 ) available to Borrower for Borrower’s restoration and repair of the Property affected by the Casualty or Taking (a “ Restoration ”), as applicable, on the following terms and subject to Borrower’s satisfaction of the following conditions; provided , that Lender shall have the right to waive any of the following conditions in its sole and absolute discretion:

 

  (a) At the time of such Casualty or Taking, as applicable, and at all times thereafter there shall exist no Default;

 

  (b) The Property affected by the Casualty or Taking, as applicable, shall be capable of being restored (including replacements) to substantially the same condition, utility, quality and character, as existed immediately prior to such Casualty or Taking, as applicable, in all material respects with a fair market value and projected cash flow of the Property equal to or greater than prior to such Casualty or Taking, as applicable;

 

  (c) Borrower shall demonstrate to Lender’s reasonable satisfaction Borrower’s ability to make the scheduled payments due under the Loan coming due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by Borrower);

 

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  (d) (i) in the event of a Casualty, less than thirty percent (30%) of each of (1) the fair market value of the Property and (2) the rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (ii) in the event of a Taking, less than fifteen percent (15%) of each of (1) the fair market value of the Property and (2) the rentable area of the Property is taken, no material portion of the Improvements is located on such land and such Taking does not materially impair the existing access to the Property. In this clause (d), the fair market value shall be reasonably determined by Lender, provided, however, if Borrower reasonably objects to Lender’s determination of fair market value, the fair market value shall be determined by an appraisal reasonably acceptable to Borrower and Lender;

 

  (e) Borrower shall have provided to Lender all of the following, and collaterally assigned the same to Lender pursuant to assignment documents reasonably acceptable to Lender: (i) an architect’s contract with an architect reasonably acceptable to Lender and complete plans and specifications for the Restoration of the Property lost or damaged to the condition, utility and value required by Section 12.8(b) ; (ii) fixed-price or guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, in Lender’s reasonable opinion, to complete the Restoration (which funds shall be held by Lender as additional collateral securing the Loan and shall be disbursed, if at all, pursuant to this Article 12 ); and (iv) copies of all permits and licenses necessary to complete the Restoration in accordance with the plans and specifications and all applicable laws.

 

  (f) Borrower shall use commercially reasonable efforts to commence such work within one hundred eighty (180) days after such Casualty or Taking, as applicable, and shall diligently pursue such work to completion;

 

  (g) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (A) the date six (6) months prior to the Maturity Date, (B) such time as may be required under applicable laws in order to repair and restore the Property to the condition as required hereunder, (C) the expiration of the business interruption insurance coverage referred to in Section 12.1(b)(ii) , and (D) earliest date required pursuant to the terms of any applicable Major Lease; and

 

  (h) the Property and the use thereof after the Restoration will be in compliance with all applicable laws in all material respects.

 

12.9 DISBURSEMENT .

 

  (a) Each disbursement by Lender of such Restoration Proceeds shall be funded subject to conditions and in accordance with disbursement procedures which a commercial construction lender would typically establish in the exercise of sound banking practices, including, without limitation, requiring lien waivers, performance and insurance bonds, and any other documents, instruments or items which may be customarily required by lenders.

 

  (b) In no event shall Lender be obligated to make disbursements of Restoration Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as determined by Lender, less, as to each contractor, subcontractor or materialman engaged in a Restoration, an amount equal to the greater of (i) ten percent (10%) of the costs actually incurred for work in place as part of such Restoration, as reasonably determined by Lender, and (ii) the amount actually withheld by Borrower (the “ Casualty Retainage ”). The Casualty Retainage shall not be released until Lender reasonably determines that the Restoration has been completed in accordance with the provisions of this Agreement and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage.

 

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ARTICLE 13. INDEMNITY

 

13.1 INDEMNITY .

BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS AND ASSIGNS (EACH, AN “INDEMNITEE”) FROM AND AGAINST ANY AND ALL ACTUAL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND REASONABLE LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH LENDER OR SUCH OTHER INDEMNITEE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS, COVENANTS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR, SUBCONTRACTOR OR MATERIALS SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS, OR LEGAL OR OTHER EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. BORROWER SHALL PROMPTLY PAY TO LENDER UPON DEMAND (WHICH DEMAND SHALL BE GIVEN PROMPTLY PROVIDED FAILURE TO PROMPTLY DELIVER SUCH DEMAND SHALL NOT ADVERSELY AFFECT LENDER’S RIGHTS HEREUNDER) ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF ANY SECURITY FOR THE LOAN.

 

13.2 DUTY TO DEFEND, LEGAL FEES AND OTHER FEES AND EXPENSES .

Upon written request by any Indemnitee, Borrower shall defend such Indemnitee (if requested by any Indemnitee, in the name of the Indemnitee) by attorneys and other professionals approved by the Indemnitee. Notwithstanding the foregoing, any Indemnitee may, in their sole discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnitee, their attorneys shall control the resolution of any claim or proceeding (other than a settlement thereof, which will require the prior written consent of Borrower). Upon demand, Borrower shall pay or, in the sole discretion of the Indemnitee, reimburse, the Indemnitee for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

 

13.3 MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION .

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each Indemnitee from and against any and all Losses imposed upon or incurred by or asserted against any Indemnitee and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents.

 

13.4 ERISA INDEMNIFICATION .

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnitee from and against any and all Losses (including, without limitation, reasonable attorneys’ fees

 

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and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Indemnitee may incur, directly or indirectly, as a result of a default under Sections 5.1(i) and 7.2 of this Agreement.

 

13.5 SPECIAL SERVICING .

Borrower shall pay all reasonable special servicing fees relating the transfer of the Loan to special servicing at any time during the term of the Loan and for so long as the Loan is in special servicing. The obligations of Borrower set forth in this Section 13.5 are limited to the Borrower and Guarantor shall have no liability to Lender hereunder.

ARTICLE 14. INTENTIONALLY OMITTED

ARTICLE 15. DUE ON SALE/ENCUMBRANCE

 

15.1 DUE ON SALE/ENCUMBRANCE .

 

  (a) Definitions . The following terms shall have the meanings indicated:

Restricted Party ” shall mean each of (i) Borrower, (ii) any SPE Party, (iii) any Intermediate Holdco, (iv) any Holdco, (v) Guarantor, and (vi) any shareholder, partner, member or non-member manager, or any direct legal or beneficial owner of Borrower, SPE Party, Intermediate Holdco, Holdco or Guarantor.

Transfer ” shall mean any sale, installment sale, exchange, mortgage, pledge, hypothecation, assignment, encumbrance or other transfer, conveyance or disposition, whether voluntarily, involuntarily or by operation of law or otherwise (but excluding Leases).

 

  (b) Property Transfers .

 

  (i) Prohibited Property Transfers . Except as otherwise permitted in this Agreement, Borrower shall not cause or permit any Transfer of all or any part of or any direct or indirect legal or beneficial interest in the Property or the Collateral (collectively, a “ Prohibited Property Transfer ”), including, without limitation, (A) a Lease of all or a material part of the Property for any purpose other than actual occupancy by a space tenant; and (B) the Transfer of all or any part of Borrower’s right, title and interest in and to any Leases or Payments.

 

  (ii) Permitted Property Transfers . Notwithstanding the foregoing, none of the following Transfers shall be deemed to be a Prohibited Property Transfer: (A) a Transfer which is expressly permitted under this Agreement; (B) a Lease which is permitted under the terms of the Loan Documents; and (C) the sale of inventory in the ordinary course of business.

 

  (c) Equity Transfers .

 

  (i)

Prohibited Equity Transfers . Except as may be permitted under this Agreement, Borrower shall not cause or permit any Transfer of any direct or indirect legal or beneficial interest in a Restricted Party (collectively, a “ Prohibited Equity Transfer ”), including without limitation, (A) if a Restricted Party is a corporation, any merger, consolidation or other Transfer of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (B) if a Restricted Party is a limited partnership, limited liability partnership, general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer

 

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of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new limited partnership interests; (C) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Transfer of a non-managing membership interest or the creation or issuance of new non-managing membership interests; or (D) if a Restricted Party is a trust, any merger, consolidation or other Transfer of any legal or beneficial interest in such Restricted Party or the creation or issuance of new legal or beneficial interests.

 

  (ii) Permitted Equity Transfers . Notwithstanding the foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s reasonable out of pocket costs and expenses in connection therewith and (z) in the event the transfer of any direct or indirect equity ownership in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Party, such transfers, if otherwise permitted hereunder, shall also be conditioned upon delivery to Lender of a new Non-Consolidation Opinion addressing such transfer:

(A) a sale, transfer or assignment (each, a “ Transfer ”) by holders of direct or indirect interests in Borrower (each an “ Interest Holder ”) as of the Disbursement Date (including, without limitation, those interests held, directly or indirectly, by Dividend Capital Total Realty Trust Inc. (“ TRT ”) or Dividend Capital Total Realty Operating Partnership LP (“ TROP ”)) to another person or entity who is not an Interest Holder, provided, however, that (i) after taking into account any prior Transfers pursuant to this sentence, whether to the proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control (as hereinafter defined) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days after the date of such Transfer; and (iii) no Default shall have occurred and is continuing;

(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in TRT, or (ii) any operating partnership units in TROP, provided, however, that TRT and TROP shall continue to (x) Control (as defined in clause (ii) in the definition of Control) directly or indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower;

(C)(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in TRT or TROP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of TRT or TROP, (iii) the listing of the securities in TRT or TROP on a national securities exchange, (iv) the conversion of TRT or TROP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of any Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“ Affiliate Transferee ”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under

 

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subsections (i) or (ii) above, results in a change in Control of TRT or TROP, as applicable, then Borrower must satisfy each of the applicable conditions relating to an assumption of the Loan by a new transferee pursuant to the applicable section within the Loan Agreement;

(D) subject to clause (C) above, a sale, issuance or Transfer of shares or other securities of TRT or any of its affiliates, which are listed on any national securities exchange;

(E)(1) the closing of the Mezzanine Loan and the execution and delivery of all of the Mezzanine Loan Documents and the performance of all of the obligations thereunder by Mezzanine Borrower and any other parties thereto and (2) foreclosure (or deed in lieu of foreclosure) by Mezzanine Lender of any direct or indirect membership interests of Borrower under any pledge agreement under the Mezzanine Loan, including under the Mezzanine Pledge Agreement; and

(F) any transfer of the direct or indirect interests of any Borrower by (or to) TRS NOIP Real Estate Holdco LLC to (or from) TRT NOIP Floating Rate CA LP Holdco LLC or to (or from) TRT NOIP Floating Real Estate Holdco LLC or (in any such case) any Affiliate thereof.

 

15.2 MEZZANINE DEBT .

Notwithstanding anything to contrary contained in this Agreement, certain owners of Borrower shall be permitted to obtain mezzanine financing (the “ New Mezzanine Loan ”) upon the repayment in full of the Mezzanine Loan, which New Mezzanine Loan shall be secured by the membership or partnership interests in Borrower or the direct or indirect owners of Borrower, subject to the following conditions and requirements:

 

  (a) the New Mezzanine Loan shall be junior and subordinate to the Loan and subject to the terms of a New Mezzanine Intercreditor (defined below);

 

  (b) Lender’s review and approval in its reasonable discretion of all of the terms and conditions of the New Mezzanine Loan, including the interest rate and loan amount (unless such interest rate and loan amount are less than the interest rate and the loan amount of the Mezzanine Loan), and the documents evidencing the New Mezzanine Loan;

 

  (c) the New Mezzanine Loan shall only be payable out of any excess cash flow from the Property (i.e., after all debt service and other payments, reserve payments and escrows due under the Loan and all operating expenses have been paid) or from equity contributions, and as otherwise permitted under the New Mezzanine Intercreditor;

 

  (d) the Debt Yield, including for the purposes of this calculation the New Mezzanine Loan is not less than (i) 11.5% or (ii) in the event the Fixed Rate Loan Earn-Out Advance shall have occurred, 11.5%;

 

  (e) the lender under the New Mezzanine Loan (the “ New Mezzanine Lender ”) shall be a Qualified Transferee and shall at all times during the term of the Loan be the sole owner and holder of the New Mezzanine Loan and shall not assign or pledge all or any portion thereof to any other third party other than a Qualified Transferee;

 

  (f) the New Mezzanine Lender shall enter into an intercreditor agreement with Lender in form and substance satisfactory to the Rating Agencies and reasonably satisfactory to Lender (the “ New Mezzanine Intercreditor ”);

 

  (g) the New Mezzanine Loan shall be nonrecourse to Borrower as to principal and interest required to be paid under the New Mezzanine Loan and shall not be secured by a lien against the Property;

 

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  (h) Borrower shall reimburse Lender for all of Lender’s reasonable attorney’s fees and actual out-of-pocket expenses incurred by Lender in reviewing the New Mezzanine Loan documents and negotiating and documenting the New Mezzanine Intercreditor; and

 

  (i) Borrower, at Borrower’s sole cost and expense and with Lender’s assistance, shall deliver a confirmation from the Rating Agencies that such New Mezzanine Loan will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the sale or exchange for any securities issued in connection with the securitization of the Loan which are then outstanding.

The final capital structure of the New Mezzanine Loan is subject in all respects to Lender’s reasonable approval and the Rating Agencies’ approval, including, without limitation, the organizational structure of Borrower.

ARTICLE 16. LOAN SYNDICATION

 

16.1 LOAN SYNDICATION AND DISCLOSURE OF INFORMATION .

Lender shall have the right, in its sole discretion, to (i) syndicate, sell and/or otherwise transfer the Loan or any portion thereof or interest therein in whole or in part and (ii) syndicate, sell and/or otherwise transfer participation interests in the Loan or any portion thereof or interest therein. Subject to Section 16.14 hereof, any of the foregoing syndications and/or transfers may be made (a) upon written notice from Lender to Borrower, to any Qualified Transferee or other acceptable financial institutions (it being understood that (x) any partial assignment, sale, transfer or participation shall be in an amount at least equal to $20,000,000 and (y) so long as there is no existing default by Borrower, of any terms of provisions of the Loan Documents, the Borrower’s prior-written consent shall be required for any such syndication or transfer of an interest in the Loan to an entity that is not a Qualified Transferee) or (b) provided that there is a then currently existing Default, to any bank, entity or person in Lender’s sole discretion (collectively, a “ Syndication Investor ”) in such manner as may be determined by Lender in its sole discretion and Borrower shall have no consent or other rights with respect thereto; provided , however , that Wells Fargo must hold no less than a $50,000,000 interest in the Loan at all times, as such amount may be reduced on a pro rata basis in connection with the Borrower’s prepayment of the Loan. The transaction(s) referred to in clauses (i) and (ii) above shall hereinafter be referred to collectively as “ Syndication Transactions ”. The terms and provisions of this Article 16 are applicable in connection with a syndication of the Loan and after the Loan has been syndicated.

Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, in the event that the Loan is syndicated pursuant to this Section 16.1 , the Administrative Agent shall have, on behalf of the Lender, all of the rights, powers, and authority that the Lender has under the terms and conditions of this Agreement and the other Loan Documents. Borrower hereby agrees (a) to reasonably cooperate with the Administrative Agent in exercising the rights, duties, and obligations set forth in this Agreement and in the other Loan Documents; (b) that all accounts, letters of credit, insurance endorsements, Security Documents, and any other instrument, account, or document originated or issued pursuant to the terms and conditions of this Agreement and/or the other Loan Documents shall be in favor of the Administrative Agent, on behalf of the Lender and its successors and assigns; (c) that the Administrative Agent, on behalf of the Lender, has the right to exercise any and all of the rights, duties, obligations, waivers, and other powers that are otherwise exercisable by, or in favor of, Lender; and (d) all monies and or other deliverables from Borrower or its Affiliates to Lender shall be delivered to the Administrative Agent on behalf of Lender and its successors and assigns.

 

  (a) This Agreement and all other Loan Documents shall be binding upon and shall be enforceable by Borrower, Lender and their respective successors and assigns, except that Borrower shall have no right (other than as set forth in this Agreement) to assign any of its rights or delegate any of its obligations under the Loan or any Loan Documents without the prior written consent of Administrative Agent (in its sole and absolute discretion).

 

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  (b) In connection with a syndication of the Loan and if the Loan is syndicated ninety (90) days or later subsequent to the Effective Date of this Agreement, then Borrower shall (at no cost or expense to Borrower) assist each Lender Party in satisfying the following:

 

  (i) within fifteen (15) days of a Lender Party’s request, provide updated financial and other customary and reasonable information with respect to the Property, the business operated at the Property, Borrower, Guarantor and Manager to the extent in the possession of Borrower or can easily be compiled by Borrower (“ Updated Syndication Information ”), together, if customary, with appropriate verification of the Updated Syndication Information through letters of auditors;

 

  (ii) provide (A) direct contact between senior management and advisors of Borrower, Guarantor, and proposed Syndication Investors, (B) reasonable assistance in the preparation of information memoranda and other marketing materials to be used in connection with Syndication Transactions, and (C) the hosting, with Administrative Agent, of one or more meetings of prospective Syndication Investors;

 

  (iii) deliver to Administrative Agent an estoppel certificate for the benefit of Lender Parties and any other party designated by Administrative Agent verifying the status and terms of the Loan, in form and content reasonably satisfactory to each Lender Party; and

 

  (iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Party’s organizational documents (and other customary loan documentation as Administrative Agent may reasonably require in connection therewith) as may be reasonably requested by any Lender Party or potential Investor or as to otherwise effect any Syndication Transaction; provided , however , that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents, or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents.

 

  (c)

In connection with any Syndication Transaction, at the election of Lender (which such election may be made in its sole discretion), (i) Lender may assign and/or transfer and deliver all or any portion of its rights and/or interests in, to and/or under the Loan and in and to the Property (such rights and/or interests, collectively, the “ Transferred Syndication Rights ”) and the assignee Syndication Investor thereof shall thereupon become vested with all such Transferred Rights, (ii) any liabilities and/or obligations of Lender to any other party with respect to such Transferred Rights shall also be transferred and vest in the Syndication Investor holding such Transferred Rights, (iii) any transferor of such Transferred Rights (which transfer shall be evidenced by an Assignment and Assumption) shall automatically be relieved and released of any liabilities and/or obligations related thereto upon such transfer and Borrower hereby releases any such transferor with respect to the same, (iv) the liabilities and obligations under the Loan and Loan Documents of the Lender Parties shall be several and not joint, (v) the Lender Parties shall only be responsible to Borrower for their respective proportionate shares of the liabilities and obligations under the Loan and no Lender Party shall be responsible for the obligations or liabilities of any other Lender Party under the Loan or Loan Documents, (vi) Lender shall designate itself to act as an administrative agent for such of the Lender Parties under such terms and conditions as Lender may designate (which such terms and conditions may include, without limitation, (A) such rights, duties, authorities and obligations of the Lender Parties under the Loan and Loan Documents that may be delegated to Administrative Agent, (B) the limitations of Administrative Agent’s liability to Borrower and the Lender Parties and (C) the terms and conditions under which Administrative Agent may act on behalf of the Lender Parties), and/or (vii) Administrative Agent and the Lender

 

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Parties may enter into such intercreditor arrangements, cross-indemnities, waivers and other agreements among Administrative Agent and the Lender Parties with respect to the Loan, the Loan Documents and each Syndication Transaction as Agent and the Lender Parties may determine in their discretion (subject to the limitations contained in Section 16.1(c)(v) ).

 

  (d) With respect to the Lender Parties and Administrative Agent, Borrower hereby acknowledges and agrees that: (i) Lender, Administrative Agent and each Syndication Investor and their respective affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, Borrower, Guarantor or any affiliate of Borrower or Guarantor and any Person who may do business with or own securities of Borrower or Guarantor or any affiliate of Borrower or Guarantor, all as if they were not serving in such capacities hereunder and without any duty to account therefor to each other and (ii) subject to limitations imposed by Lender, all references to “ Lender ” contained herein and in the other Loan Documents (including, without limitation, in the indemnity, waiver and expense provisions contained herein and in the other Loan Documents) shall be deemed to include each of Administrative Agent and the Lender Parties.

 

  (e) At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender (the “ Syndication Servicer ”) and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such Syndication Servicer.

 

  (f) At the request of Lender, Borrower shall appoint, as its agent, a registrar and transfer agent (the “ Syndication Registrar ”) reasonably acceptable to Lender which shall maintain, subject to such reasonable regulations as it shall provide, such books and records as are necessary for the registration and transfer of the Syndication Note in a manner that shall cause the Syndication Note to be considered to be in registered form for purposes of Section 163(f) of the IRS Code. The option to convert the Syndication Note into registered form once exercised may not be revoked. Any agreement setting out the rights and obligation of the Syndication Registrar shall be subject to the reasonable approval of Lender. Borrower may revoke the appointment of any particular person as Syndication Registrar, effective upon the effectiveness of the appointment of a replacement Syndication Registrar. The Syndication Registrar shall not be entitled to any fee from Borrower or Lender or any other lender in respect of transfers of the Syndication Note and other Loan Documents.

Lender may disseminate to any Lender Party (and to any investment banking firms, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable Syndication Transaction) all documents and financial and other information then possessed by or known to Lender with respect to: (a) the Property and its operation; and (b) any party connected with the Loan (including, without limitation, Borrower, any partner or member of Borrower, any constituent partner or member of Borrower, any Guarantor and any non-borrower trustor); provided , however , that prior to any such information being distributed to any Lender Party (and to any investment banking firms, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable Syndication Transaction) such recipient shall agree in writing to keep all such information confidential other than as may be required by Applicable Laws or court order.

 

16.2 APPOINTMENT AND AUTHORIZATION .

Lender hereby irrevocably appoints and authorizes Wells Fargo as the Administrative Agent, which Administrative Agent is authorized to take such action as contractual representative on such Lender’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, Lender authorizes and directs the Administrative Agent to enter into the Loan Documents for the benefit of the Lenders. Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of

 

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the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon each Lender Party. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any Lender Party or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”, “Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Administrative Agent shall deliver to each Lender, promptly upon receipt thereof by Administrative Agent, copies of each of the financial statements, certificates, notices and other documents delivered to Administrative Agent pursuant to the terms hereof that the Borrower is not otherwise required to deliver directly to the Lender. The Administrative Agent will furnish to any Lender Party, upon the request of such Lender Party, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement of the Loan Documents or collection of the Debt, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of the Lender Parties if explicitly required under any other provision of this Agreement), and such instructions shall be binding upon each of the Lender Parties and all holders of any of the Debt; provided , however , that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Administrative Agent may exercise or may refrain from exercising any right or remedy it or the Lender may have under any Loan Document upon the occurrence of a Default unless the Requisite Lenders (which must include the Administrative Agent) have directed the Administrative Agent otherwise and unless and until Administrative Agent shall have received directions from Requisite Lenders (which must include the Administrative Agent), Administrative Agent may take such action, or refrain from taking such action, with respect to any Default as Administrative Agent shall determine in its sole discretion. Furthermore, and without limiting the foregoing, no Lender Party shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite Lenders pursuant to the terms hereof, or where applicable, all the Lender Parties.

 

16.3 WELLS FARGO AS LENDER .

Wells Fargo, as a Lender Party, shall have the same rights and powers under this Agreement and any other Loan Document as any other Lender Party and may exercise the same as though it were not the Administrative Agent; and the term “Lender Party” or “Lender Parties” shall, unless otherwise expressly indicated, include Wells Fargo in each case in its individual capacity. Wells Fargo and its affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with the Borrower or any affiliate thereof as if it were any other bank and without any duty to account therefor to the other Lenders. Further, the Administrative Agent and any affiliate may accept fees and other consideration from the Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other Lenders. The Lenders acknowledge that, pursuant to such activities, Wells Fargo or its affiliates may receive information regarding the Borrower and the Borrower’s Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them.

 

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16.4 COLLATERAL MATTERS; PROTECTIVE ADVANCES .

 

  (a) Each Lender Party hereby authorizes the Administrative Agent, without the necessity of any notice to or further consent from any Lender Party, from time to time prior to a Default, to take any action with respect to the Property or Loan Documents which may be necessary to perfect and maintain perfected the liens upon the Property granted pursuant to any of the Loan Documents.

 

  (b) The Lender Parties hereby authorize the Administrative Agent, at its option and in its discretion, to release any lien granted to or held by the Agent upon the Property (i) upon indefeasible payment and satisfaction in full of the Debt; (ii) as expressly permitted by, but only in accordance with, the terms of the applicable Loan Document; and (iii) if approved, authorized or ratified in writing by the Requisite Lenders (or such greater number of Lender Parties as this Agreement or any other Loan Document may expressly provide). Upon request by the Administrative Agent at any time, the Lender Parties will confirm in writing the Administrative Agent’s authority to release the Property pursuant to this Section 16.4 .

 

  (c) Upon any sale of the Property which is expressly permitted pursuant to the terms of this Agreement, and upon at least five (5) Business Days’ prior written request by the Borrower, the Administrative Agent shall (and is hereby irrevocably authorized by the Lender Parties to) execute such documents as may be necessary to evidence the release of the liens granted to the Administrative Agent for the benefit of the Lender herein or pursuant hereto upon the Property that was sold or transferred; provided , however , that the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty. In the event of any sale or transfer of the Property, or any foreclosure with respect to the Property, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative Agent from the proceeds of any such sale, transfer or foreclosure.

 

  (d) The Administrative Agent shall have no obligation whatsoever to the Lender Parties or to any other Person to assure that the Property exists or is owned by the Borrower or is cared for, protected or insured or that the liens granted to the Administrative Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Administrative Agent in this Section 16.4 or in any of the Loan Documents, it being understood and agreed that in respect of the Property, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lender Parties, except to the extent resulting from its gross negligence or willful misconduct.

 

  (e) The Administrative Agent may make, and shall be reimbursed by the Lender Parties (in accordance with their Pro Rata Shares) to the extent not reimbursed by the Borrower for, Protective Advances with respect to the Property up to the sum of (i) amounts expended to pay Taxes imposed upon the Property; (ii) amounts expended to pay Insurance Premiums related to the Property; and (iii) $500,000. Protective Advances in excess of said sum for the Property shall require the consent of the Requisite Lenders. The Borrower agrees to pay on demand all Protective Advances, including, without limitation, those Protective Advances described in this Section 16.4 .

 

16.5 POST-FORECLOSURE PLANS .

If all or any portion of the Property is acquired by the Administrative Agent as a result of a foreclosure or the acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Debt, the title to the Property, or any portion thereof, shall be held in the name of the Administrative Agent or a nominee or subsidiary of the Administrative Agent, as agent, for the ratable benefit of all Lender Parties. The Administrative Agent shall prepare a recommended course of action for the Property (a “ Post-

 

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Foreclosure Plan ”), which shall be subject to the approval of the Requisite Lenders (which must include the approval of the Administrative Agent). In accordance with the approved Post-Foreclosure Plan, the Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Property acquired, and shall administer all transactions relating thereto, including, without limitation, employing a property manager, leasing agent and other agents, contractors and employees, including agents for the sale of the Property, and the collecting of rents and other sums from the Property and paying the expenses of such Property. Actions taken by the Administrative Agent with respect to the Property, which are not specifically provided for in the approved Post-Foreclosure Plan or reasonably incidental thereto, shall require the written consent of the Requisite Lenders (which must include the consent the Administrative Agent) by way of supplement to such Post-Foreclosure Plan. Upon demand therefor from time to time, each Lender Party will contribute its Pro Rata Share of all reasonable costs and expenses incurred by the Administrative Agent pursuant to the approved Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, leasing and sale of the Property. In addition, the Administrative Agent shall render or cause to be rendered to each Lender Party, on a monthly basis, an income and expense statement for the Property, and each Lender Party shall promptly (but no later than five (5) Business Days from receipt of such statement) contribute its Pro Rata Share of any operating loss for the Property, and such other expenses and operating reserves as the Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the approved Post-Foreclosure Plan. To the extent there is net operating income from the Property, the Administrative Agent shall, in accordance with the approved Post-Foreclosure Plan, determine the amount and timing of distributions to the Lender Parties. All such distributions shall be made to the Lender Parties in accordance with their respective Pro Rata Shares. The Lender Parties acknowledge and agree that if title to the Property is obtained by the Administrative Agent or its nominee, the Property will not be held as a permanent investment but will be liquidated as soon as practicable. The Administrative Agent shall undertake to sell the Property at such price and upon such terms and conditions as the Requisite Lenders reasonably shall determine (which must include the consent of the Administrative Agent) to be most advantageous to the Lender Parties. Any purchase money mortgage or deed of trust taken in connection with the disposition of the Property in accordance with the immediately preceding sentence shall name the Administrative Agent, as agent for the Lender Parties, as the beneficiary or mortgagee. In such case, the Administrative Agent and the Lender Parties shall enter into an agreement with respect to such purchase money mortgage or deed of trust defining the rights of the Lender Parties in the same Pro Rata Shares as provided hereunder, which agreement shall be in all material respects similar to this Article 16 insofar as the same is appropriate or applicable.

 

16.6 APPROVALS OF LENDERS .

All communications from the Administrative Agent to any Lender Party requesting such Lender Party’s determination, consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender Party, (b) shall be accompanied by a description of the matter or issue as to which such determination, approval, consent or disapproval is requested, or shall advise such Lender Party where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably requested by such Lender Party and to the extent not previously provided to such Lender Party, written materials and a summary of all oral information provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved, and (d) shall include the Administrative Agent’s recommended course of action or determination in respect thereof. Unless a Lender Party shall give written notice to Administrative Agent that it specifically objects to the recommendation or determination of Administrative Agent (together with a reasonable written explanation of the reasons behind such objection) within ten (10) Business Days (or such lesser or greater period as may be specifically required under the express terms of the Loan Documents) of receipt of such communication, such Lender Party shall be deemed to have conclusively approved of or consented to such recommendation or determination.

 

16.7 NOTICE OF DEFAULTS .

The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default unless the Administrative Agent has received notice from a Lender Party or the Borrower referring to this

 

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Agreement, describing with reasonable specificity such Default, and stating that such notice is a “notice of default.” If any Lender Party (excluding any Lender Party which is also serving as the Administrative Agent) becomes aware of any Default, it shall promptly send to the Administrative Agent such a “notice of default”. Further, if the Administrative Agent receives such a “notice of default,” the Administrative Agent shall give prompt notice thereof to the Lender Parties.

 

16.8 ADMINISTRATIVE AGENT’S RELIANCE .

Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein. Without limiting the generality of the foregoing, the Administrative Agent: may consult with legal counsel (including its own counsel or counsel for the Borrower or any other party to the Loan), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Neither the Administrative Agent nor any of its directors, officers, agents, employees or counsel: (a) makes any warranty or representation to any Lender Party or any other Person and shall not be responsible to any Lender Party or any other Person for any statement, warranty or representation made or deemed made by the Borrower, any other Loan Party or any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of the Borrower or other Persons or inspect the property, books or records of the Borrower or any other Person; (c) shall be responsible to any Lender Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or the Property covered thereby or the perfection or priority of any Lien in favor of the Administrative Agent on behalf of the Lender Parties in any the Property; (d) shall have any liability in respect of any recitals, statements, certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate or statement delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may execute any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.

 

16.9 INDEMNIFICATION OF ADMINISTRATIVE AGENT .

Regardless of whether the transactions contemplated by this Agreement and the other Loan Documents are consummated, each Lender Party agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender Party’s respective Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Administrative Agent (in its capacity as Administrative Agent but not as a “Lender Party”) in any way relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under the Loan Documents (collectively, Indemnifiable Amounts ); provided , however , that no Lender Party shall be liable for any portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided , however , that no action taken in accordance with the directions of the Requisite Lenders (or all of the Lender Parties, if expressly required hereunder) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 16.9 . Without limiting the generality of the foregoing, each Lender Party agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower

 

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and without limiting the obligation of the Borrower to do so) promptly upon demand for its Pro Rata Share of any out-of-pocket expenses (including the reasonable fees and expenses of the counsel to the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation, execution, administration, or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by the Administrative Agent to enforce the terms of the Loan Documents and/or collect the Debt, any “lender liability” suit or claim brought against the Administrative Agent and/or the Lender Parties, and any claim or suit brought against the Administrative Agent and/or the Lender Parties arising under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lender Parties on the request of the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the Administrative Agent will reimburse the Lender Parties if it is actually and finally determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to indemnification. The agreements in this Section 16.9 shall survive the payment of the Loan and all other amounts payable hereunder or under the other Loan Documents and the termination of this Agreement. If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount following payment by any Lender Party to the Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section 16.9 , the Agent shall share such reimbursement on a ratable basis with each Lender Party making any such payment.

 

16.10 LENDER CREDIT DECISION, ETC .

Each Lender Party expressly acknowledges and agrees that neither the Administrative Agent nor any of its officers, directors, employees, agents, counsel, attorneys-in-fact or other affiliates has made any representations or warranties to such Lender Party and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Borrower, any other party to the Loan or any Affiliate of Borrower, shall be deemed to constitute any such representation or warranty by the Administrative Agent to any Lender Party. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender Party or counsel to the Administrative Agent, or any of their respective officers, directors, employees, agents or counsel, and based on the financial statements of the Borrower and Affiliates of Borrower, and inquiries of such Persons, its independent due diligence of the business and affairs of the Borrower and other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated hereby. Each Lender Party also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Lender Party or counsel to the Administrative Agent or any of their respective officers, directors, employees and agents, and based on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under the Loan Documents. The Administrative Agent shall not be required to keep itself informed as to the performance or observance by the Borrower or any other Party to the Loan Documents or any other document referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, the Borrower and/or any Affiliate of Borrower. Except for notices, reports and other documents and information expressly required to be furnished to the Lender Parties by the Administrative Agent under this Agreement or any of the other Loan Documents, the Administrative Agent shall have no duty or responsibility to provide any Lender Party with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Borrower or any Affiliate thereof which may come into possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender Party acknowledges that the Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as counsel to such Lender Party.

 

16.13 INTENTIONALLY OMITTED .

 

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16.12 DEFAULTING LENDERS .

If for any reason any Lender (a “ Defaulting Lender ”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loan, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of Requisite Lenders or unanimous Lender Party consent, as applicable, shall be suspended during the pendency of such failure or refusal. If for any reason a Lender Party fails to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Individual Loan Commitment shall not be paid to such Defaulting Lender and shall be held by the Administrative Agent and paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default. Furthermore, a Defaulting Lender shall indemnify and hold harmless Borrower, Administrative Agent and each of the other Lenders from any claim, loss, or costs incurred by Borrower, Administrative Agent and/or the other Lender Parties as a result of a Defaulting Lender’s failure to comply with the requirements of this Agreement, including, without limitation, any and all additional losses, damages, costs and expenses (including, without limitation, attorneys’ fees) incurred by Borrower, Administrative Agent and any Lender Party as a result of and/or in connection with (i) any enforcement action brought by Administrative Agent against a Defaulting Lender and (ii) any action brought against Administrative Agent and/or Lender Parties. The indemnification provided above shall survive any termination of this Agreement.

 

16.13 PARTICIPATIONS .

Subject to the terms and conditions of Section 16.1 of this Agreement, (a) any Lender Party may at any time grant to an Affiliate of such Lender Party or one or more banks or other financial institutions that constitute Qualified Transferees (each a “ Syndication Participant ”) participating interests in the portion of the Debt owing to such Lender Party. Except as otherwise expressly stated herein, no Syndication Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by a Lender Party of a participating interest to a Syndication Participant, such Lender Party shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender Party may grant such a participating interest shall provide that such Lender Party shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided , however , such Lender Party may agree with the Syndication Participant that it will not, without the consent of the Syndication Participant, agree to (i) increase such Lender Party’s Individual Loan Commitment, (ii) extend the date fixed for the payment of principal on the Loan or portions thereof owing to such Lender Party, or (iii) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 16.14 below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 16.13 . Subject to paragraph (b) of this Section 16.13 , the Borrower agrees that each Syndication Participant shall be entitled to the benefits of Subsections 2.2(b)(v) , (f)(i) , (g) , (h)  to the same extent as if it were a Lender Party hereunder and had acquired its interest by assignment pursuant to Section 16.14 . To the extent permitted by law, each Syndication Participant also shall be entitled to the benefits of Section 17.20 as though it were a Lender Party.

 

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  (b) A Participant shall not be entitled to receive any greater payment under Subsections 2.2(b)(v) , (f)(i) , (g) , (h)  than the applicable Lender Party would have been entitled to receive with respect to the participation sold to such Participant. A Participant that would be a Foreign Lender if it were a Lender Party shall not be entitled to the benefits of Section 2.(f)(i) unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.2(f)(i) and (ii)  as though it were a Lender Party.

 

16.14 ASSIGNMENTS .

Any Lender Party may with the prior written consent of the Administrative Agent at any time assign to one or more Qualified Transferees (each an “ Assignee ”) all or a portion of its rights and obligations under this Agreement and the Syndication Notes; provided , however , (i) any partial assignment shall be in an amount at least equal to $20,000,000 (provided, however, that Wells Fargo must hold no less than a $50,000,000 interest in the Loan at all times, as such amount may be reduced on a pro rata basis in connection with the Borrower’s prepayment of the Loan) and (ii) each such assignment shall be effected by means of an Assignment and Assumption. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender Party of an amount equal to the purchase price agreed between such transferor Lender Party and such Assignee, such Assignee shall be deemed to be a Lender Party to this Agreement and shall have all the rights and obligations of a Lender Party with an Individual Loan Commitment as set forth in such Assignment and Assumption Agreement, and upon the full execution of such Assignment and Assumption the transferor Lender Party shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 16.14 and if requested by the transferee Lender Party and/or the transferor Lender Party, the transferor Lender Party, the Administrative Agent and the Borrower shall make appropriate arrangements so new substitute Syndication Notes are issued to the Assignee and such transferor Lender Party by Borrower, as appropriate. In connection with any such assignment, the transferor Lender Party shall pay to the Administrative Agent an administrative fee for processing such assignment in the amount of $4,500.00 for the account of Administrative Agent. Notwithstanding anything herein to the contrary, no Lender Party may assign or participate any interest in any Loan held by it hereunder to the Borrower or to any Affiliate of the Borrower.

 

16.15 FEDERAL RESERVE BANK ASSIGNMENTS .

In addition to the assignments and participations permitted under the foregoing Sections of this Article 16 , and without the need to comply with any of the formal or procedural requirements of the foregoing Sections of this Article 16 , any Lender Party may at any time and from time to time, pledge and assign all or any portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank; provided that no such pledge of assignment shall release such assigning Lender Party from its obligations thereunder.

 

16.16 INFORMATION TO ASSIGNEE, ETC .

A Lender Party may furnish any information concerning the Borrower or any affiliate thereof in the possession of such Lender Party from time to time to Assignees and Syndication Participants (including prospective Assignees and prospective Syndication Participants); provided , however , that prior to any such information being distributed by any Lender Party (and to any investment banking firms, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable Syndication Transaction) such recipient shall agree in writing to keep all such information confidential other than as may be required by Applicable Laws or court order.

 

16.17 AMENDMENTS AND WAIVERS .

 

  (a)

Generally . Except as otherwise expressly provided in this Agreement, (i) any consent or approval required or permitted by this Agreement or in any Loan Document to be given by the Lender Parties may be given, (ii) any term of this Agreement or of any other Loan Document (other than

 

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any fee letter solely between the Borrower and the Administrative Agent) may be amended in any material respect, (iii) the performance or observance by the Borrower or any other party to the Loan Documents of any terms of this Agreement or such other Loan Document (other than any fee letter, if any, solely between the Borrower and the Agent) may be waived, (iv) the acceleration of the maturity of the Loan may be rescinded and (v) the continuance of any Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Borrower and Affiliate thereof which is party to the Loan Documents. Notwithstanding the previous sentence, Administrative Agent, shall be authorized on behalf of all the Lender Parties, without the necessity of any notice to, or further consent from, any Lender Party, to waive (i) the imposition of the late charges provided in Section 2.3(a) hereof, up to a maximum of three (3) times per calendar year and (ii) the requirement that the outstanding principal balance of the Loan and any overdue interest shall accrue interest at the Default Rate upon the occurrence and during the continuance of a Default, pursuant to Section 2.3(b) hereof.

 

  (b) Unanimous Consent . Notwithstanding the foregoing or anything herein or in the other Loan Documents to the contrary, in addition to those matters herein and in the other Loan Documents that expressly require the unanimous consent of all of the Lender Parties, no amendment, waiver or consent (except with respect to any fee letter solely between the Borrower and Agent regarding fees owed only to the Administrative Agent) shall, unless in writing, and signed by all of the Lender Parties (or the Administrative Agent, at the written direction of the Lender Parties), but excluding any Defaulting Lender, do any of the following:

 

  (i) increase the Individual Loan Commitments of the Lenders (excluding any increase as a result of an assignment of any Individual Loan Commitments permitted under Section 16.14 hereof) or subject the Lender Parties to any additional obligations;

 

  (ii) reduce the principal of, or interest rates that have accrued or that will be charged on the outstanding principal amount of the Loan;

 

  (iii) reduce the amount of any Fees, if any, payable to the Lender Parties hereunder;

 

  (iv) postpone any date fixed for any payment of principal and/or interest on the Loan or for the payment of any Fees or any other payments due and payable by Borrower hereunder or under the other Loan Documents;

 

  (v) change the Pro Rata Shares (excluding any change as a result of an assignment of any Individual Loan Commitment permitted under Section 16.14 hereof);

 

  (vi) waive any requirement to deliver or maintain an Interest Rate Protection Agreement;

 

  (vii) amend this Section or amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions affect the substance of this Section;

 

  (viii) modify the definition of the term “Requisite Lenders” or modify in any other manner the number of percentage of the Lender Parties required to make any determinations or waive any rights hereunder or to modify any provision hereof;

 

  (ix) permit any Prohibited Property Transfer or permit any assignment by Borrower pursuant to Section 15.1(b)(i) hereof.

 

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  (x) release any Guarantor from its obligations under the Guaranty unless expressly permitted pursuant to the terms hereof or under the other Loan Documents;

 

  (xi) waive a Default under Section 9.1 hereof;

 

  (xii) amend or otherwise waive the requirements of Section 9.3(b) hereof; or

 

  (xiii) release or dispose of the Property or any portion thereof unless released in accordance with the express terms hereof.

Wherever any approval, consent or direction herein or in any other Loan Document is required by “each Lender Party” or “Lender Parties” it shall mean that such approval, consent or direction must be agreed to by the unanimous consent of all of the Lenders.

 

  (c) Intentionally Omitted.

 

  (d) Notwithstanding the foregoing or anything herein or in the Loan Documents to the contrary, to the extent that this Agreement or the other Loan Documents condition a consent or approval upon Requisite Lenders’ or unanimous Lender Parties’ consent (or require Borrower to deliver notices, reports, financial statements, or any other deliveries hereunder to Lender), it is agreed to hereunder that Borrower shall make all requests of such consent and approval of Administrative Agent (notwithstanding that Requisite Lenders’ or unanimous Lender Parties’ consent is required) (and deliver any such notices, reports, financial statements and other deliveries to Administrative Agent only) and all communication with the Lender Parties with respect to such matter which Borrower has made a request shall be to and from the Administrative Agent. It is expressly understood that Borrower shall not be obligated to communicate or interface directly with any Lender Party or Lender Parties concerning any consents, approvals, modifications or amendments or waivers hereunder. Borrower shall be entitled to rely on any written consent, approval, notice or any other statement received by or from the Administrative Agent.

 

16.18 CONSENT TO AND ACKNOWLEDGEMENT OF ADMINISTRATIVE AGENT .

Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, in the event that the Loan is syndicated pursuant to Section 16.1 of this Agreement, the Administrative Agent shall have, on behalf of the Lender, all of the rights, powers, and authority that the Lender has under the terms and conditions of this Agreement and the other Loan Documents. Borrower hereby agrees (a) reasonably to cooperate with the Administrative Agent in exercising the rights, duties, and obligations set forth in this Agreement and in the other Loan Documents; (b) that all accounts, letters of credit, insurance endorsements, Security Documents, and any other instrument, account, or document originated or issued pursuant to the terms and conditions of this Agreement and/or the other Loan Documents shall be in favor of the Administrative Agent, on behalf of the Lender and its successors and assigns; (c) that the Administrative Agent, on behalf of the Lender, has the right to exercise any and all of the rights, duties, obligations, waivers, and other powers that are in otherwise exercisable by, or in favor of, the Lender; and (d) all monies and or other deliverables from Borrower or its Affiliates to the Lender shall be delivered to the Administrative Agent on behalf of the Lender and its successors and assigns.

 

16.19 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES; NON-LIABILITY OF ADMINISTRATIVE AGENT AND LENDERS .

 

  (a) Borrower, Administrative Agent and Lender Party intend that the relationships created under this Agreement, the Security Documents, the Syndication Note and the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower, Administrative Agent and/or Lender Parties nor to grant Administrative Agent or any Lender Party any interest in the Property other than that of mortgagee, beneficiary or lender.

 

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  (b) This Agreement, the Security Documents, the Syndication Note and the other Loan Documents are solely for the benefit of Administrative Agent, Lender Parties and Borrower and nothing contained in this Agreement, the Security Documents, the Syndication Note or the other Loan Documents shall be deemed to confer upon anyone other than Administrative Agent, Lender Parties and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender Parties to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender Parties and no other Person (other than Administrative Agent) shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender Parties will refuse to make, or participate in, the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions (other than Administrative Agent), any or all of which may be freely waived in whole or in part by Lender Parties if, in Lender Parties’ sole discretion, Lender Parties deems it advisable or desirable to do so.

 

  (c) The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender Parties are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Borrower is not relying on Administrative Agent’s or Lender Parties’ expertise, business acumen or advice in connection with the Property.

 

  (d) Notwithstanding anything to the contrary contained herein, neither Lender Parties nor Administrative Agent are undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

 

  (e) By accepting or approving anything required to be observed, performed or fulfilled or to be given to Administrative Agent and/or Lender Parties pursuant to this Agreement, the Security Documents, the Syndication Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, neither Administrative Agent nor Lender Parties shall be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Administrative Agent or any Lender Party.

 

  (f) Borrower recognizes and acknowledges that in accepting this Agreement, the Syndication Note, the Security Documents and the other Loan Documents, Administrative Agent and Lender Parties are expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 5 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Administrative Agent or any Lender Party; that such reliance existed on the part of Administrative Agent and Lender Parties prior to the date hereof, that the warranties and representations are a material inducement to Lender Parties in making the Loan; and that Lender Parties would not be willing to make the Loan and accept the this Agreement, the Syndication Note, the Security Documents and the other Loan Documents in the absence of the warranties and representations as set forth in Article 5 of this Agreement.

Neither Administrative Agent nor any Lender shall have any fiduciary responsibilities to Borrower and no provision in this Agreement or in any of the other Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty owing by Administrative Agent or any Lender to any Lender, Borrower, or any Affiliate of Borrower. Neither Administrative Agent nor any Lender undertakes any responsibility to Borrower to review or inform Borrower of any matter in connection with any phase of Borrower’s business or operations.

 

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16.20 DELAY OUTSIDE LENDER’S CONTROL .

Neither Administrative Agent nor any Lender Party shall be liable in any way to Borrower or any third party for Administrative Agent’s or such Lender Party’s failure to perform or delay in performing under this Agreement and the other Loan Documents (and Administrative Agent or any Lender Party may suspend or terminate all or any portion of Administrative Agent’s or such Lender Party’s obligations under this Agreement and any other Loan Documents) if such failure to perform or delay in performing results directly or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because of war, rebellion, insurrection, strike, lock-out, boycott or blockade (whether presently in effect, announced or in the sole judgment of Administrative Agent or such Lender Party deemed probable), or from any Act of God or other cause or event beyond Administrative Agent’s or such Lender Party’s control.

 

16.21 ACTIONS .

Borrower agrees that Administrative Agent or any Lender Party, in exercising the rights, duties or liabilities of Administrative Agent, Lender Party or Borrower under this Agreement and the other Loan Documents, may commence, appear in or defend any action or proceeding purporting to affect the Property, the Improvements, this Agreement and/or the other Loan Documents and Borrower shall promptly reimburse Administrative Agent or such Lender Party upon demand for all such third-party expenses so incurred or paid by Administrative Agent or such Lender Party, including, without limitation, reasonable attorneys’ fees and expenses and court costs.

 

16.22 FORM OF DOCUMENTS .

The form and substance of all documents, instruments, and forms of evidence to be delivered to Administrative Agent under the terms of this Agreement and any of the other Loan Documents shall be subject to Administrative Agent’s approval and shall not be modified, superseded or terminated in any respect without Administrative Agent’s prior written approval.

 

16.23 ADMINISTRATIVE AGENT’S AND LENDER PARTY’S AGENTS .

Administrative Agent and/or any Lender Party may designate an agent or independent contractor to exercise any of such Person’s rights under this Agreement or any of the other Loan Documents. Any reference to Administrative Agent or any Lender Party herein or in any of the other Loan Documents shall include Administrative Agent’s and such Lender Party’s agents, employees or independent contractors.

 

16.24 NOTICES .

All notices or other written communications hereunder shall be deemed to have been properly given (a) upon delivery, if delivered in person or by facsimile transmission with receipt acknowledged by the recipient thereof and confirmed by telephone by sender, (b) one (1) Business Day after having been deposited for overnight delivery with any reputable overnight courier service, or (c) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:

 

If to Borrower:   

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202

Attention: Guy Arnold, President

With a copy to:   

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202

Attention: Joshua J. Widoff, Senior Vice President and General Counsel

 

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With a copy to:     

Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166

Attention: Robert J. Ivanhoe, Esq.

If to Administrative Agent:     

Wells Fargo, National Association

Wells Fargo Center

1901 Harrison Street, 2nd Floor

MAC A0227-020

Oakland, California 94612

Attention: Commercial Mortgage Servicing

Facsimile No.: 866-359-5352

With a copy to:     

Cadwalader, Wickersham & Taft LLP

227 West Trade Street, Suite 2400

Charlotte, NC 28202

Attention: James P. Carroll, Esq.

Facsimile No.: 704-348-5200

If to any other Lender Party:      To such Lender Party’s address or telecopy number as set forth on the signature page hereof or in the applicable Assignment and Assumption Agreement, or to such other address as such Lender Party may specify to Administrative Agent and Borrower from time to time.

or addressed as such party may from time to time designate by written notice to the other parties. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.

 

16.25 FUNDS TRANSFER DISBURSEMENTS .

 

  (a) Generally . The Borrower hereby authorizes Administrative Agent to disburse the proceeds of the Loan made by Lenders and any Impounds being disbursed to Borrower pursuant to Article 4 hereof as requested by an authorized representative of Borrower to any of the accounts designated in the Transfer Authorizer Designation Form. Borrower agrees to be bound by any transfer request: (i) authorized or transmitted by Borrower or (ii) made in Borrower’s name and accepted by the Administrative Agent in good faith and in compliance with these transfer instructions, even if not properly authorized by Borrower. Borrower further agrees and acknowledges that Administrative Agent may rely solely on any bank routing number or identifying bank account number or name provided by Borrower to effect a wire or funds transfer even if the information provided by Borrower identifies a different bank or account holder than named by Borrower. Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by Borrower. If Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of transfer or requests or takes any actions in an attempt to detect unauthorized funds transfer requests, Borrower agrees that no matter how many times Administrative Agent takes these actions Administrative Agent will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this provision, the Loan Documents, or any agreement between Administrative Agent and Borrower. Borrower agrees to notify Administrative Agent of any errors in the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after Administrative Agent’s confirmation to Borrower of such transfer.

 

  (b)

Funds Transfer . Administrative Agent will, in its sole discretion, determine the funds transfer system and the means by which each transfer will be made. Administrative Agent may delay or

 

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refuse to accept a funds transfer request if the transfer would: (i) violate the terms of this authorization; (ii) require use of a bank unacceptable to Administrative Agent or any Lender Party or prohibited by any Governmental Authority; (iii) cause Administrative Agent or any Lender Party to violate any Federal Reserve or other regulatory risk control program or guideline, or (iv) otherwise cause Administrative Agent or any Lender Party to violate any Applicable Law or regulation.

 

  (c) Limitation of Liability . Neither the Administrative Agent nor any Lender Party shall be liable to Borrower or any other parties for (i) errors, acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower’s transfers may be made or information received or transmitted, and no such entity shall be deemed an agent of Administrative Agent or any Lender Party, (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Administrative Agent’s or any Lender Party’s control, or (iii) any special, consequential, indirect or punitive damages, whether or not (x) any claim for these damages is based on tort or contract or (y) Administrative Agent, such Lender Party or the Borrower knew or should have known the likelihood of these damages in any situation. Neither Administrative Agent nor any Lender Party makes any representations or warranties other than those expressly set forth herein.

 

16.26 INTENTIONALLY OMITTED .

 

16.27 INTENTIONALLY OMITTED. COST OF ENFORCEMENT .

In the event (a) that a Security Document is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) any Lender Party and/or Administrative Agent exercises any of their other remedies under this Agreement, the Security Documents, the Syndication Note and the other Loan Documents, Borrower shall be chargeable with and agrees to pay all third-party costs of collection and defense, including attorneys’ fees and costs, incurred by Administrative Agent, any Lender Party and Borrower in connection therewith and in connection with any appellate proceeding or post judgment action involved therein, together with all required service or use taxes. Any amounts payable to Administrative Agent and any Lender Party pursuant to this Section 16.28 shall become immediately due and payable upon demand and shall bear interest at the Interest Rate from the date of such demand until the date such amounts have been paid.

 

16.29 CONVERSION TO REGISTERED FORM .

At the request of Administrative Agent on behalf of any Lender Party, Borrower shall appoint, as its agent, a registrar and transfer agent (the “ Registrar ”) reasonably acceptable to Administrative Agent which shall maintain, subject to such reasonable regulations as it shall provide, such books and records as are necessary for the registration and transfer of the applicable Syndication Note in a manner that shall cause the applicable Syndication Note to be considered to be in registered form for purposes of Section 163(f) of the IRS Code. The option to convert the applicable Syndication Note into registered form once exercised may not be revoked. Any agreement setting out the rights and obligation of the Registrar shall be subject to the reasonable approval of Administrative Agent, for the benefit of such Lender Party. Borrower may revoke the appointment of any particular person as Registrar, effective upon the effectiveness of the appointment of a replacement Registrar. The Registrar shall not be entitled to any fee from Borrower or Lender Party or any other lender in respect of transfers of the applicable Syndication Note and any other Loan Documents.

 

16.30 ELECTRONIC DELIVERY OF CERTAIN INFORMATION .

If requested by Administrative Agent, documents required to be delivered by Borrower pursuant to the Loan Documents shall be delivered, in addition to the method set forth in Section 16.24 above, by electronic communication and delivery, including the Internet, e-mail or intranet websites to which Administrative Agent and each Lender Party have access (including a commercial, third-party website such

 

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as www.Edgar.com <http://www.Edgar.com> or a website sponsored or hosted by Administrative Agent), provided that no Lender Party has notified Administrative Agent that it cannot or does not want to receive electronic communications. Administrative Agent may, in its discretion, agree to accept notices and other communications to it hereunder by electronic delivery pursuant to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically by Borrower may be posted by Administrative Agent on a commercial website and Administrative Agent shall notify each Lender Party of said posting and shall provide a link thereto. Notwithstanding anything contained herein, in every instance Borrower shall be required to provide paper copies of any Officer’s Certificate to Administrative Agent and shall deliver paper copies of all documents to Administrative Agent until a written request to cease delivering paper copies is given by Administrative Agent (on behalf of Lender Parties). Except for the Officer’s Certificate, Administrative Agent shall have no obligation to maintain paper copies of the documents delivered electronically and, in any event, shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. Each Lender Party shall be solely responsible for requesting delivery to it of paper copies and maintaining its paper or electronic documents.

 

16.31 POSSESSION OF DOCUMENTS .

Each Lender Party shall maintain possession of its own Syndication Note. Administrative Agent shall hold all other Loan Documents and related documents in its possession and maintain separate records and accounts with respect to the Loan, reflecting the interests of Lenders in the Loan, and shall permit Lenders (other than any Defaulting Lender) and their representatives access at all reasonable times during normal business hours to inspect such Loan Documents, related documents, records and accounts.

 

16.32 MODIFICATION TO LOAN TERMS .

In the event that the Lender elects to syndicate the Loan in accordance with Section 16.01 of this Agreement, then the following terms and provisions shall be in full force and effect:

 

  (a) The following subsection is hereby added as Section 2.2(f)(iii) of this Agreement:

“Neither Administrative Agent nor any Lender Party shall be entitled to claim compensation pursuant to this Subsection 2.2(f) for any Foreign Taxes, increased cost or reduction in amounts received or receivable hereunder, or any reduced rate of return, which was incurred or which accrued more than ninety (90) days before the date Administrative Agent (for itself and/or on behalf of any Lender Party) notified Borrower of the change in law or other circumstance on which such claim of compensation is based and delivered to Borrower a written statement setting forth in reasonable detail the basis for calculating the additional amounts owed to Administrative Agent and/or such Lender Party, as applicable, under this subsection, which statement shall be conclusive and binding upon all parties hereto absent manifest error.”

 

  (b) The following section is hereby added as Section 2.9 of this Agreement and shall be entitled “ PRO RATA TREATMENT ”:

“Except to the extent otherwise provided herein: (a) the borrowing from Lender Parties under Section 2.1 shall be paid for the account of Lender Parties and/or Administrative Agent, as applicable, (b) each payment or prepayment of principal of the Loan by the Borrower shall be made for the account of the Lender Parties pro rata in accordance with the respective unpaid principal amounts of the Individual Loan Commitments held by them, and (c) each payment of interest on the Loan by Borrower shall be made for the account of Lender Parties pro rata in accordance with the amounts of interest on their Individual Loan Commitments then due and payable to the respective Lender Parties.”

 

  (c) The following section is hereby added as Section 2.10 of this Agreement and shall be entitled “ SEVERAL OBLIGATIONS ”:

“No Lender Party shall be responsible for the failure of any other Lender Party to perform any obligation to be made or performed by such other Lender Party hereunder, and the failure of any Lender Party to perform any obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender Party to make or to perform any obligation to be made or performed by such other Lender Party. The liability of each Lender Party hereunder shall be several and not joint.”

 

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  (d) The following section is hereby added as Section 2.11 of this Agreement and shall be entitled “ SHARING OF PAYMENTS, ETC . ”:

“If a Lender Party shall obtain payment of any principal of its Syndication Note or of interest thereon through the exercise of any right of setoff, banker’s lien, counterclaim, or by any other means (including direct payment), and such payment results in such Lender Party receiving a greater payment than it would have been entitled to had such payment been paid directly to Administrative Agent for disbursement to Lender Parties, then such Lender Party shall promptly purchase for cash from the other Lender Parties participations in the Loan in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lender Parties shall share ratably the benefit of such payment. To such end Lender Parties shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower agrees that any Lender Party so purchasing a participation (or direct interest) in the Individual Loan Commitments owed to such other Lender Parties may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with the respect to such participation as fully as if such Lender Party were a direct holder of the Loan in the amount of such participation. Nothing contained herein shall require any Lender Party to exercise any such right or shall affect the right of any Lender Party to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.”

 

  (e) The following subsection is hereby added as Section 9.3(b) of this Agreement (and the first subsection of Section 9.3 shall be designated (a)):

 

  “(b) If a Default exists and maturity of the Debt has been accelerated, all payments received by Administrative Agent under any of the Loan Documents, in respect of any principal of or interest on the Debt or any other amounts payable by the Borrower hereunder or thereunder, shall be applied in the following order and priority:

 

  (i) First, to Administrative Agent in an amount equal to any Protective Advances that have not been reimbursed to Administrative Agent, any accrued and unpaid amounts due to Administrative Agent from Borrower pursuant to the terms hereof and the other Loan Documents, including, but not limited to, those costs and expenses due from Borrower pursuant to Sections 16.28 and 16.29 hereof;

 

  (ii) Second, to Lender Parties (other than any Defaulting Lender) in respect of Fees and expenses due from Borrower pursuant to the terms hereof and the other Loan Documents;

 

  (iii) Third, to Lender Parties (other than any Defaulting Lender) for payments of interest (including, but not limited to, any interest accrued at the Default Rate) on each Individual Loan Commitment, to be applied for the ratable benefit of the Lender Parties;

 

  (iv) Fourth, to Lender Parties (other than any Defaulting Lender) for payments of principal on each Individual Loan Commitment, to be applied for the ratable benefit of the Lender Parties;

 

  (v) Fifth, to Lender Parties (other than any Defaulting Lender) for amounts due to Lenders pursuant to Article 13 hereof;

 

  (vi) Sixth, to Lender Parties (other than any Defaulting Lender) for payment of all other amounts due hereunder or under any of the other Loan Documents, if any, to be applied for the ratable benefit of the Lender Parties, in such order as Lender Parties may determine in their sole discretion;

 

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  (vii) Seventh, to any Defaulting Lender for payment of any and all amounts due to such Defaulting Lender hereunder or under any of the other Loan Documents, including, without limitation, any principal and interest due and payable to such Defaulting Lender; and

 

  (viii) Eighth, any amount remaining after application as provided above shall deposited into the Restricted Account and distributed pursuant to the terms and conditions of the Cash Management Agreement.”

 

  (f) Section 13.1 of this Agreement is hereby deleted in its entirety and the following is substituted therefor and shall be entitled “ GENERAL INDEMNITY ”:

“BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS EACH OF ADMINISTRATIVE AGENT, LENDER PARTIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS AND ASSIGNS (EACH, AN “ INDEMNITEE ”) FROM AND AGAINST ANY AND ALL ACTUAL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND REASONABLE LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH ADMINISTRATIVE AGENT, LENDER PARTIES, OR SUCH OTHER INDEMNITEE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS, COVENANTS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR, SUBCONTRACTOR OR MATERIALS SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS, OR LEGAL OR OTHER EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. BORROWER SHALL PROMPTLY PAY TO LENDER UPON DEMAND ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF ANY SECURITY FOR THE LOAN.”

ARTICLE 17. MISCELLANEOUS PROVISIONS

 

17.1 FORM OF DOCUMENTS .

The form and substance of all documents, instruments, and forms of evidence to be delivered to Lender under the terms of this Agreement and any of the other Loan Documents shall (unless expressly set forth to the contrary) be subject to Lender’s approval as more particularly set forth hereunder and under the other Loan Documents and shall not be modified, superseded or terminated in any respect without Lender’s prior written approval.

 

17.2 NO THIRD PARTIES BENEFITED .

No Person other than Lender and Borrower (and Guarantor with respect to the Guaranty) and their respective permitted successors and assigns shall have any right of action under any of the Loan Documents.

 

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17.3 NOTICES .

All notices, demands, or other communications under this Agreement and the other Loan Documents shall be in writing and shall be delivered to the appropriate party at the address set forth on the signature page of this Agreement (subject to change from time to time by written notice to all other parties to this Agreement). All notices, demands or other communications shall be considered as properly given if delivered personally or sent by certified mail, return receipt requested, or by overnight express mail or by overnight commercial courier service, charges prepaid. Notices so sent shall be effective upon receipt; provided, however, that non-receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication.

 

17.4 ONGOING CREDIT AUTHORIZATION .

Borrower grants authorization to Lender to perform credit investigation on Borrower, Guarantor and other Affiliates of Borrower from time to time over the term of the Loan at Lender’s expense.

 

17.5 ATTORNEY-IN-FACT .

Borrower hereby irrevocably appoints and authorizes Lender, as Borrower’s attorney-in-fact, after the occurrence and during the continuance of a Default, which agency is coupled with an interest, to execute and/or record at any time hereafter and during the term of the Loan in Lender’s or Borrower’s name any notices, instruments or documents that Lender reasonably deems necessary to protect or otherwise perfect Lender’s interest under any of the Loan Documents.

 

17.6 ACTIONS .

Borrower agrees that Lender, in exercising the rights, duties or liabilities of Lender or Borrower under the Loan Documents, may (upon prior consultation with Borrower) commence, appear in or defend any action or proceeding which is reasonably likely to have a Material Adverse Effect on the Property or the Loan Documents, and Borrower shall reimburse Lender upon demand for all such reasonable expenses so incurred or paid by Lender, including, without limitation, reasonable attorneys’ fees and expenses and court costs; provided that Section 17.10 shall apply with respect to disputes between Lender and Borrower.

 

17.7 RIGHT OF CONTEST .

Borrower may contest in good faith any claim, demand, levy or assessment by any Person other than Lender which would constitute a Default if: (a) Borrower pursues the contest diligently, in a manner which Lender determines (in its reasonable discretion) is not prejudicial to Lender, and does not impair in any material respect the rights of Lender under any of the Loan Documents; and (b) Borrower deposits with Lender any funds or other forms of assurance (which may include funds then held as Impounds, as determined in Lender’s reasonable discretion) which Lender in good faith determines from time to time appropriate to protect Lender from the consequences of the contest being unsuccessful. Borrower’s compliance with this Section shall operate to prevent such claim, demand, levy or assessment from becoming a Default.

 

17.8 RELATIONSHIP OF PARTIES .

The relationship of Borrower and Lender under the Loan Documents is, and shall at all times remain, solely that of borrower and lender, and Lender neither undertakes nor assumes any responsibility or duty to Borrower or to any third party with respect to the Property, except as expressly provided in this Agreement and the other Loan Documents.

 

17.9 DELAY OUTSIDE LENDER’S CONTROL .

Lender shall not be liable in any way to Borrower or any third party for Lender’s failure to perform or delay in performing under the Loan Documents (and Lender may suspend or terminate all or any portion of Lender’s obligations under the Loan Documents) if such failure to perform or delay in performing results

 

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directly or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because of war, rebellion, insurrection, strike, lockout, boycott or blockade (whether presently in effect, announced or in the sole judgment of Lender deemed probable), or from any act of God or other cause or event beyond Lender’s control, provided that Lender provides prompt written notice of any such aforementioned event to Borrower. The limitation on Lender’s liability under this Section 17.9 shall be effective only during the continuance of any such aforementioned event.

 

17.10 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT .

If any attorney is engaged by Lender to enforce or defend, against Borrower, any SPE Party, Guarantor or any of their Affiliates, agents or representatives, any provision of this Agreement and/or any of the other Loan Documents, or as a consequence of any Default under the Loan Documents, with or without the filing of any legal action or proceeding, and including, without limitation, any reasonable fees and expenses incurred in connection with any “work-out” of the Loan or bankruptcy proceeding of Borrower, then Borrower shall pay to Lender, upon demand, the amount of all reasonable costs and expenses incurred by Lender in connection therewith (including reasonable attorneys’ fees and any then reasonable and customary loan servicing and/or special servicing fees applicable to the Loan (including, without limitation any reasonable “work-out” and/or liquidation fees)), together with interest thereon from the date of such demand until paid at the Default Rate; provided that, if any action is commenced in connection with any of the foregoing, the party who is determined to be the prevailing party in such action shall be entitled to be paid, and the non-prevailing party shall pay to the prevailing party, all reasonable attorneys’ fees and interest thereon as noted above as fixed by the court. As used herein the term “prevailing party” shall mean the party which obtains the principal relief it has sought, whether by compromise settlement or judgment. If the party which commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.

 

17.11 IMMEDIATELY AVAILABLE FUNDS .

Unless otherwise expressly provided for in this Agreement, all amounts payable by Borrower to Lender shall be payable only in United States currency in immediately available funds.

 

17.12 INTENTIONALLY OMITTED .

 

17.13 LENDER’S AGENTS .

Lender may designate an agent or independent contractor to exercise any of Lender’s rights under this Agreement and any of the other Loan Documents. Any reference to Lender in any of the Loan Documents shall include Lender’s agents, employees or independent contractors. Borrower shall pay the actual, reasonable costs of such agent or independent contractor either directly to such Person or to Lender in reimbursement of such costs, as applicable.

 

17.14 AUTHORIZATION TO FILE FINANCING STATEMENTS .

Borrower hereby authorizes Lender to file at any time on or after the date hereof, appropriate uniform commercial code financing statements in such jurisdictions and offices as Lender deems necessary or appropriate in connection with the anticipated perfection of a security interest in any and all personal property part of the Collateral as same relate to the Property. If for any reason the Loan is not consummated or upon Borrower’s payment in full of the Loan, Lender will cause the termination of such financing statements upon Lender’s receipt of written request from Borrower.

 

17.15 TAX SERVICE .

Lender is authorized to secure a tax service contract with a third party vendor which shall provide tax information on the Property satisfactory to Lender. Borrower shall pay any reasonable fees associated with procuring such tax service contract in connection with the closing of the Loan, but not in connection with any subsequent tax service contracts obtained by Lender.

 

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17.16 ADVERTISING .

In connection with the Loan, Borrower hereby agrees that Lender and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details may include the name of the Property, address of the Property, the Loan amount, the date of the closing and a description of the size/location of the Property. Subject to the prior approval of Lender (except in the case of disclosures required under applicable laws or regulations), Lender hereby agrees that Borrower and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details disclosed by Borrower may include only the name of the Property, address of the Property, the Loan amount (but not the Note Rate), the date of the closing and a description of the size/location of the Property.

 

17.17 COMMERCIAL LOAN .

Borrower warrants that the Loan evidenced by this Agreement, the Note and the other Loan Documents is being made solely to acquire or carry on a business or commercial enterprise, and/or Borrower is a business or commercial organization. Borrower further warrants that all of the proceeds of this Agreement, the Note and the other Loan Documents shall be used for commercial purposes and stipulates that the Loan evidenced by this Agreement, the Note and the other Loan Documents shall be construed for all purposes as a commercial loan, and is made for other than personal, family or household purposes.

 

17.18 DISBURSEMENT OF LOAN PROCEEDS; LIMITATION OF LIABILITY .

Borrower authorizes Lender to disburse the proceeds of the Loan, after deducting any and all fees owed by Borrower to Lender in connection with the Loan, to the Title Company. With respect to such disbursement, Borrower understands and agrees that Lender does not accept responsibility for errors, acts or omissions of others, including, without limitation, the escrow company, other banks, communications carriers or clearinghouses through which the transfer of Loan proceeds may be made or through which Lender receives or transmits information, and no such entity shall be deemed Lender’s agent. As a consequence, Lender shall not be liable to Borrower for any actual (whether direct or indirect), consequential or punitive damages which may arise with respect to the disbursement of Loan proceeds (other than as a result of the gross negligence or willful misconduct of Lender), whether or not (a) any claim for such damages is based on tort or contract, or (b) either Lender or Borrower knew or should have known of the likelihood of such damages in any situation.

 

17.19 SEVERABILITY .

If any provision or obligation under this Agreement and the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of the Loan Documents, provided, however, that if the rate of interest or any other amount payable under the Note or this Agreement or any other Loan Document, or the right of collectability therefor, are declared to be or become invalid, illegal or unenforceable, Lender’s obligations to make advances under the Loan Documents shall not be enforceable by Borrower.

 

17.20 SET–OFF .

In addition to any rights now or hereafter granted under the Loan Documents, Requirements of Law or otherwise, Borrower hereby grants to Lender and each Indemnitee to secure repayment of the Loan, a right of set off upon any and all of the following: monies, securities, collateral or other property of each of Borrower and any proceeds from the foregoing, now or hereafter held or received by Lender, any Affiliate of Lender or any Indemnitee, for the account of Borrower, whether for safekeeping, custody, pledge, transmission, collection or otherwise, and also upon any and all deposits (general, specified, special, time,

 

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demand, provisional or final) and credits, claims or Indebtedness of Borrower at any time existing, and any obligation owed by Lender or any Affiliate of Lender to Borrower and to set-off against the Debt, any obligations, or Indebtedness owed by Borrower and any Indebtedness owed by Lender or any Affiliate of Lender to Borrower, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under this Agreement or the other Loan Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Lender, any Affiliate of Lender or any Indemnified Person to or for the credit of Borrower, without prejudice to Lender’s right to recover any deficiency. Each of Lender, each Affiliate of Lender and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Borrower to Lender or any Indemnified Person under this Agreement, the other Loan Documents, or otherwise or upon the occurrence and during the continuance of a Default, without notice to Borrower, any such notice being expressly waived by Borrower to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Lender or any Indemnified Person by Borrower under this Agreement or the other the Loan Documents, irrespective of whether Lender, any Affiliate of Lender or any Indemnified Person shall have made any demand under this Agreement or the other Loan Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover a deficiency. ANY AND ALL RIGHTS TO REQUIRE LENDER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PROPERTY OR OTHER INDEMNIFIED PERSONS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY BORROWER.

Lender or any Indemnified Person shall promptly notify the affected Borrower after any such set-off and application made by Lender or such Indemnified Person, provided that the failure to give such notice shall not affect the validity of such set-off and application. If an amount or obligation is unascertained, Lender may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant Party accounting to the other Party when the amount or obligation is ascertained. Nothing in this Section 17.20 shall be effective to create a charge or other security interest. This Section 17.20 shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other rights to which any Party is at any time otherwise entitled.

 

17.21 HEADINGS .

All article, section or other headings appearing in this Agreement and any of the other Loan Documents are for convenience of reference only and shall be disregarded in construing this Agreement and any of the other Loan Documents.

 

17.22 SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY .

If Borrower consists of more than one Person, the obligations and liabilities of each such Person hereunder shall be joint and several. Except as otherwise expressly provided under the terms and conditions of this Agreement, the terms, covenants, and conditions contained herein and in the other Loan Documents shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto and thereto.

 

17.23 GOVERNING LAW; JURISDICTION .

 

  (a)

THIS AGREEMENT AND THE LOAN, AS A WHOLE, WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LENDERS HAVE SUBSTANTIAL BUSINESS OPERATIONS IN THE STATE OF NEW YORK AND THE LOAN DOCUMENTS WERE EXECUTED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE

 

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OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

  (b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH OF LENDER AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:

National Registered Agents, Inc.

160 Greentree Drive

Suite 101

Dover, Delaware 19904

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

 

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17.24 WAIVER OF RIGHT TO TRIAL BY JURY .

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.

 

17.25 INTEGRATION; INTERPRETATION .

The Loan Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein and supersede all prior negotiations or agreements, written or oral. The Loan Documents shall not be modified, except by written instrument executed by all parties. Any reference to the Loan Documents includes any amendments, renewals or extensions now or hereafter approved by the parties hereto in writing.

 

17.26 COUNTERPARTS .

To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document.

 

17.27 AMENDMENTS .

Notwithstanding any provision of any other Loan Document (including without limitation the Note), in no event can any Loan Document be amended, extended, supplemented or otherwise modified, in whole or in part, except pursuant to a written agreement executed by Lender and any other party who has executed such Loan Document.

 

17.28 CONSENTS AND APPROVALS; CONSTRUCTION .

Wherever Lender’s consent, approval, acceptance or satisfaction is required under any provision of this Agreement or any of the other Loan Documents, such consent, approval, acceptance or satisfaction shall be in Lender’s sole discretion except as may be otherwise expressly and specifically provided herein.

 

17.29 BRING DOWN OF REPRESENTATIONS; SURVIVAL OF WARRANTIES; CUMULATIVE .

Borrower hereby covenants and agrees to execute and deliver, at such time and from time to time, as required by Lender, such agreements, documents, instruments, estoppels, consents or certificates as Lender may, from time to time, reasonably request, including certificates reaffirming the representations and covenants of Borrower hereunder as if made on the date of any such reaffirmation. All representations and warranties contained in this Agreement and in any of the other Loan Documents shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of such compliance certificate (subject to the terms of Section 5.1(w) hereof), and each additional borrowing or other credit accommodation hereunder and shall be conclusively presumed to have been relied on by

 

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Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender.

 

17.30 INTENTIONALLY OMITTED .

 

17.31 INTENTIONALLY OMITTED .

 

17.32 INTENTIONALLY OMITTED .

 

17.33 EXHIBITS; SCHEDULES .

All exhibits and schedules attached hereto and listed in the Table of Contents are fully incorporated herein by reference for all purposes.

 

17.34 CONFLICT .

In the event of any conflict between this Agreement and any of the other Loan Documents, the terms of this Agreement shall govern.

 

17.35 SECURITIZATION INDEMNIFICATION; LOAN SALES AND LOAN PARTICIPATIONS; DISCLOSURE OF INFORMATION

 

  (a) Borrower understands that information provided to Lender by Borrower and its agents, counsel and representatives may be included in disclosure documents in connection with a securitization of the Loan (the “ Securitization ”), including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “ Disclosure Document ”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”), or the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”), and may be made available to investors or prospective investors in the certificates, notes or other securities issued in connection with the Securitization, the Rating Agencies, and service providers relating to the Securitization.

 

  (b)

Upon Lender’s request, Borrower shall provide in connection with each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has examined such specific sections of the Disclosure Documents specified in writing by Lender, as specifically relating to Borrower, Borrower Affiliates, the Property, Manager, Guarantor and other aspects of the Loan (the “ Specific Sections ”), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 17.35 , Lender hereunder shall include its officers and directors), and any Affiliates of Lender that have filed the registration statement relating to the Securitization (the “ Registration Statement ”), each of its directors, each of its officers who have signed the Registration Statement and each Person that controls the Affiliate of Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “ Lender Group ”), and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “ Underwriter Group ”) for any losses, claims, damages or liabilities (collectively, the “ Liabilities ”) to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in the Specified Sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such Specified Sections in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter

 

76


 

Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above and under Section 17.35(c) below only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made in the Specified Sections in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, and operating statements and rent rolls with respect to the Property provided by Borrower. The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have.

 

  (c) In connection with Exchange Act Filings, Borrower shall (subject to the proviso in Section 17.35(b)(ii)(C)) (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Specified Sections of the Disclosure Document a material fact required to be stated in the Specified Sections of the Disclosure Document in order to make the statements in the Specified Sections of the Disclosure Document, in light of the circumstances under which they were made, not misleading and (ii) reimburse Lender, the Lender Group or the Underwriter Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by Lender, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.

 

  (d) Promptly after receipt by an indemnified party under this Section 17.35 of notice of a claim and/or the commencement of any action relating to an indemnified Liability, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 17.35 , notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any claim or action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 17.35 , such indemnified party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party(ies) shall not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.

 

  (e)

In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 17.35(b) or (c)  hereof is for any reason held to be unenforceable as to an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 17.35(b) or (c)  hereof, the indemnifying party shall contribute to the amount paid or

 

77


 

payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) Lenders’ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.

 

  (f) The liabilities and obligations of both Borrower and Lender under this Section 17.35 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.

 

  (g) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in such Securitization or (ii) the financial statements described in Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or apportion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within thirty (30) days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than sixty (60) days after the end of each fiscal quarter of Borrower and (C) not later than one hundred twenty (120) Business Days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which an Exchange Act Filing is not required. If reasonably requested by Lender, and to the extent available to Borrower and not prohibited by any applicable lease, other agreement or order, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.

 

  (h)

All financial data and financial statements provided by Borrower hereunder pursuant to Sections 17.35(g) and (h)  hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All annual financial statements referred to in Section 17.35(g) above shall be audited by independent accountants of Borrower (which accountants shall be acceptable to Lender) in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all applicable legal requirements, and shall be further accompanied by a manually

 

78


 

executed written consent of the independent accountants, in form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under Section 17.35(g) shall be accompanied by an Officer’s Certificate stating that such financial statements meet the requirements set forth in the first sentence of this Section 17.35(h) .

 

  (i) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing.

 

  (j) In the event Lender reasonably determines, in connection with a Securitization, that the financial data and financial statements and (if applicable) related accountants’ reports and consents required in order to comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 17.35(g) and (h) , Lender may request, and Borrower shall promptly provide, such other financial statements and (if applicable) related accountants’ reports and consents as Lender reasonably determines to be necessary or appropriate for such compliance with applicable law.

 

  (k)

Borrower hereby acknowledges that Lender may in one or more transactions (a) sell or securitize the Loan or portions thereof in one or more transactions through the issuance of securities, which securities may be rated by the Rating Agencies, (b) sell or otherwise transfer the Loan or any portion thereof one or more times (including selling or assigning its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee), (c) sell participation interests in the Loan one or more times (d) re-securitize the securities issued in connection with any securitization, and/or (e) further divide the Loan into two or more separate notes, including senior and junior notes, or components (the transactions referred to in clauses (a) through (e) above, each a “Secondary Market Transaction” and collectively “Secondary Market Transactions”). With respect to any Secondary Market Transaction described in clause (e) above, (i) such notes and note components may be assigned different principal amounts and interest rates, so long as (x) at all times prior to a Default, the weighted average of the interest rates payable under the Loan and such component notes(s), equals the Interest Rate as of the closing of the Loan and (y) immediately after the effective date of such modification, the aggregate amount of the outstanding principal balance under such component notes equals the outstanding principal balance of the Loan immediately prior to such modification, and (ii) Borrower, at Lender’s cost and expense, agrees to execute and deliver to Lender such non-material amendments to the Loan Documents, title insurance endorsements, legal opinions and other customary loan documentation as Lender may reasonably require in connection therewith, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. Provided that all such recipients of any such documentation or information keep the same confidential (except that, in the case of a public securitization, information may be disclosed to the extent required by federal securities laws), Lender may disseminate to any actual or potential purchasers, assignees or participants (and to any investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable sale, assignment, participation, securitization, or other secondary market transaction) all documents and financial and other information then possessed by or known to Lender with respect to: (a) the Property and its operation; and (b) Borrower, any constituent partner or member of

 

79


 

Borrower, any guarantor and any non-borrower trustor. Borrower shall (at Lender’s sole cost and expense), within fifteen (15) days after request by Lender; (a) deliver to Lender such information and documents relating to Borrower, the Property and its operation and any party connected with the Loan as Lender or any Rating Agency may reasonably request; (b) deliver to Lender an estoppel certificate for the benefit of Lender and any other party designated by Lender verifying the status and terms of the Loan, in form and content reasonably satisfactory to Lender; (c) enter into such amendments to the Loan Documents as may be requested in order to facilitate any such sale, assignment, participation, securitization, or other secondary market transaction, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents; (d) enter into such amendments to the organizational documents of Borrower as Lender or any Rating Agency may reasonably request to preserve or enhance Borrower’s special-purpose bankruptcy-remote status; and (e) provide opinions of counsel, which may be relied on by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware and federal bankruptcy law relating to Delaware limited liability companies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies, including a 10b-5 opinion, with respect to the Loan, the Property, the Borrower and Guarantor, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies. All of the foregoing shall be at no cost to Borrower provided no Default is continuing. Lender hereby agrees that any sale or participation (other than a Securitization) of all or any part of the Loan shall be made only to a Qualified Transferee.

 

17.36 BORROWER WAIVERS .

With respect to any waivers given by Borrower under this Agreement and other Loan Documents, Borrower acknowledges that: (a) the obligations undertaken by Borrower under and pursuant to this Agreement and the Loan Documents are complex in nature, (b) Borrower’s waivers variously involve rights that may otherwise be available to Borrower or for its benefit, (c) as part of Lender’s consideration for entering into this transaction, Lender has specifically bargained for Borrower’s waivers and the relinquishment by Borrower of those rights so waived, and (d) Borrower has had the opportunity to seek and receive legal advice from skilled legal counsel in the area of financial transactions of the type reflected in this Agreement and the Loan Documents. Based on the foregoing facts, Borrower represents and confirms to Lender that Borrower is fully informed regarding, and that Borrower does thoroughly understand the following: (i) the nature of its waivers and rights it has waived, (ii) the circumstances under which those rights may arise, (iii) the benefits which those rights might otherwise confer upon Borrower, and (iv) the legal consequences to Borrower of waiving those rights. Borrower acknowledges that Borrower has entered into this Agreement and the other Loan Documents and both undertaken Borrower’s obligations hereunder and thereunder and given its waivers with the intent that all such waivers shall be fully enforceable by Lender, and that Lender has been induced to enter into this transaction in material reliance upon the presumed full enforceability thereof.

 

17.37 REMEDIES OF BORROWER .

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where, by applicable law or under this Agreement, the Mortgage, the Note and the other Loan Documents, Lender or such agent, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

 

80


17.38 MULTIPLE BORROWERS .

The parties hereto acknowledge that the defined term “ Borrower ” (as well as the defined term defining each other Collective Group) has been defined to collectively include each individual Borrower (and in the case of each Collective Group, defined to collectively include each member of the same). It is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred, (b) there has occurred a Default, or (c) an event has occurred which would create recourse obligations under this Agreement, that any such breach, occurrence or event with respect to any Borrower (or with respect to any single member of a Collective Group) shall be deemed to be such a breach, occurrence or event with respect to all Borrowers (and in the case of each Collective Group, each member of the same) and that all Borrowers need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Borrower (and likewise that each member of a Collective Group need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to such Collective Group). The term “ Collective Group ” as used in this Agreement shall refer to each of the groups of entities represented in this Agreement by the following defined terms: Borrower and Guarantor. The obligations and liabilities of each Borrower shall be joint and several as more further set forth in a contribution agreement entered into in connection with the Loan.

[The remainder of this page intentionally left blank]

 

81


THIS AGREEMENT IS EXECUTED by Lender and Borrower as of the date appearing on the first page hereof.

 

LENDER :       

WELLS FARGO BANK,

NATIONAL ASSOCIATION

      

Lender’s Address:

 

       WELLS FARGO BANK, NATIONAL ASSOCIATION
By:  

/s/ ROBERT ROSENBERG

      

Loan Administration

  Name:  

Robert Rosenberg

       Wells Fargo Center
  Title:   Managing Director        Commercial Mortgage Servicing
          

1901 Harrison Street, 2 nd Floor

Mac A0227-020

Oakland, California 94612

Attention: Commercial Mortgage Servicing

Loan No.: 33-0909758

 

with a copy to counsel:

 

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.

[Signatures continue on the following page]


THIS AGREEMENT IS EXECUTED by Lender and Borrower as of the date appearing on the first page hereof.

 

BORROWER :      Borrower’s Address:

[BORROWER NAME]

a [STATE OF FORMATION] [ENTITY TYPE]

     c/o Dividend Capital Total Realty

 

     Operating Partnership LP

a

 

 

     518 17th Street, Suite 1700
         Denver, Colorado 80202
         Attention: Lainie Minnick
         Fax #: 303.869.4602

By:

  /s/ GREG MORAN     

 

with a copy to counsel:

 

Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166

Attention: Robert J. Ivanhoe, Esq.

  Name:   Greg Moran     
  Title:   SVP     
        
        


 

Schedule A-10 - Page 1


SCHEDULE 1

BORROWERS

 

1. TRT NOIP Shadelands – Walnut Creek LP, a Delaware limited partnership (2625 Shadelands Drive, Walnut Creek, CA)

 

2. TRT NOIP Cottonwood – Milpitas LP, a Delaware limited partnership (510 Cottonwood Drive, Milpitas, CA)

 

3. TRT NOIP Rue Ferrari – San Jose LP, a Delaware limited partnership (5853/5863 Rue Ferrari Drive, San Jose, CA)

 

4. TRT NOIP Dublin LP, a Delaware limited partnership (One and Three Sybase Drive, Dublin, CA)

 

5. TRT NOIP Waterview – Dallas LP, a Delaware limited partnership (17201 Waterview Parkway, Dallas, TX)

 

6. TRT NOIP North Fairway Drive – Vernon Hills LLC, a Delaware limited liability company (440 North Fairway Drive, Vernon Hills, IL)

 

7. TRT NOIP South Havana – Englewood LLC, a Delaware limited liability company (6901 South Havana Street, Englewood, CO)

 

8. TRT NOIP Inverness – Englewood LLC, a Delaware limited liability company (161 Inverness Drive West, Englewood, CO)

 

9. TRT NOIP Crown Colony – Quincy LLC, a Delaware limited liability company (1100 Crown Colony Drive, Quincy, MA)

 

10. TRT NOIP Charleston – Mountain View LP, a Delaware limited partnership (1545 Charleston Place, Mountain View, CA and 1565/1585 Charleston Place, Mountain View, CA)

 

11. TRT NOIP Apache Trail – Terrell LP, a Delaware limited partnership (301 Apache Trail, Terrell, TX)

 

12. TRT NOIP Salem Church – York LLC, a Delaware limited liability company (300 South Salem Church Road, York, PA)

 

13. TRT NOIP King Mill – McDonough LLC, a Delaware limited liability company (201 King Mill Court, McDonough, GA)

 

14. TRT NOIP Business Center – Stockbridge LLC, a Delaware limited liability company (500 Business Center Drive, Stockbridge, GA)

 

15. TRT NOIP Corporate Drive – DeKalb LLC, a Delaware limited liability company (3095 Corporate Drive, DeKalb, IL)

 

16. TRT NOIP Creekside – Lockbourne LLC, a Delaware limited liability company (2750 Creekside Parkway, Lockbourne, OH)

 

17. iStar NG LP, a Delaware limited partnership (7555 Colshire Drive, McLean, VA)

 

J-2


Wells Fargo Loan No. 33-0909758

EXHIBIT K

TRANSFER AUTHORIZER DESIGNATION

(For Disbursement of Loan Proceeds and Reserve Funds by Funds Transfer)

¨ NEW ¨ REPLACE PREVIOUS DESIGNATION ¨ ADD ¨ CHANGE ¨ DELETE LINE NUMBER             

The following representatives of [NAME OF BORROWER] (“Borrower”) are authorized to request the disbursement of the proceeds of the Loan on the Closing Date (as defined in the Loan Agreement (defined herein)) and any Reserve Funds (as defined in the Loan Agreement) in accordance with the terms of the Loan Agreement and initiate such funds transfers for Loan Number                      assigned to that certain mortgage loan evidenced by that certain Loan Agreement dated                   , 20      among Borrower, each of the financial institutions initially a signatory thereto together with their permitted assignees (the “ Lenders ”), Wells Fargo Bank, National Association, as the administrative agent for the Lenders (the “ Administrative Agent ”) and the other parties thereto (the “ Loan Agreement ”). The Administrative Agent is authorized to rely on this Transfer Authorizer Designation until it has received a new Transfer Authorizer Designation signed by Borrower, even in the event that any or all of the foregoing information may have changed.

 

    

Name

  

Title

     
     
     
     
     

[Continued on next page]

 

K-1


Wells Fargo Loan No. 33-0909758

1.

 

Beneficiary Bank and Account Holder Information

 

Transfer Funds to (Receiving Party Account Name):

Receiving Party Account Number:

Receiving Bank Name, City and State:

  

Receiving Bank Routing

(ABA) Number:

Maximum Transfer Amount:

  

Further Credit Information/Instructions:

2.

 

Transfer Funds to (Receiving Party Account Name):

Receiving Party Account Number:

Receiving Bank Name, City and State:

  

Receiving Bank Routing

(ABA) Number:

Maximum Transfer Amount:

  

Further Credit Information/Instructions:

3.

 

Transfer Funds to (Receiving Party Account Name):

Receiving Party Account Number:

Receiving Bank Name, City and State:

  

Receiving Bank Routing

(ABA) Number:

Maximum Transfer Amount:

  

Further Credit Information/Instructions:

[Signature provided on next page]

 

K-2


Date:                      , 20     

“BORROWER”

 

[NAME OF BORROWER],
a  

 

By:  

 

  Name:  
  Title:  

 

K-3


SCHEDULE 1

BORROWERS

 

1. TRT NOIP Shadelands – Walnut Creek LP, a Delaware limited partnership (2625 Shadelands Drive, Walnut Creek, CA)

 

2. TRT NOIP Cottonwood – Milpitas LP, a Delaware limited partnership (510 Cottonwood Drive, Milpitas, CA)

 

3. TRT NOIP Rue Ferrari – San Jose LP, a Delaware limited partnership (5853/5863 Rue Ferrari Drive, San Jose, CA)

 

4. TRT NOIP Dublin LP, a Delaware limited partnership (One and Three Sybase Drive, Dublin, CA)

 

5. TRT NOIP Waterview – Dallas LP, a Delaware limited partnership (17201 Waterview Parkway, Dallas, TX)

 

6. TRT NOIP North Fairway Drive – Vernon Hills LLC, a Delaware limited liability company (440 North Fairway Drive, Vernon Hills, IL)

 

7. TRT NOIP South Havana – Englewood LLC, a Delaware limited liability company (6901 South Havana Street, Englewood, CO)

 

8. TRT NOIP Inverness – Englewood LLC, a Delaware limited liability company (161 Inverness Drive West, Englewood, CO)

 

9. TRT NOIP Crown Colony – Quincy LLC, a Delaware limited liability company (1100 Crown Colony Drive, Quincy, MA)

 

10. TRT NOIP Charleston – Mountain View LP, a Delaware limited partnership (1545 Charleston Place, Mountain View, CA and 1565/1585 Charleston Place, Mountain View, CA)

 

11. TRT NOIP Apache Trail – Terrell LP, a Delaware limited partnership (301 Apache Trail, Terrell, TX)

 

12. TRT NOIP Salem Church – York LLC, a Delaware limited liability company (300 South Salem Church Road, York, PA)

 

13. TRT NOIP King Mill – McDonough LLC, a Delaware limited liability company (201 King Mill Court, McDonough, GA)

 

14. TRT NOIP Business Center – Stockbridge LLC, a Delaware limited liability company (500 Business Center Drive, Stockbridge, GA)

 

15. TRT NOIP Corporate Drive – DeKalb LLC, a Delaware limited liability company (3095 Corporate Drive, DeKalb, IL)

 

16. TRT NOIP Creekside – Lockbourne LLC, a Delaware limited liability company (2750 Creekside Parkway, Lockbourne, OH)

 

17. iStar NG LP, a Delaware limited partnership (7555 Colshire Drive, McLean, VA)

 

K-4


SCHEDULE 5.1(J)(1)

RENT PAYMENT OFFSETS / DEFENSES

 

    

Tenant

  

Issue

  

Monetary Obligation

1.    Northrop Grumman & Company    Curtain wall repair to be completed by landlord    Reimbursement of tenant’s costs if tenant performs the work in accordance with its rights under the lease.


SCHEDULE 5.1(J)(2)

LEASES WITH OPTIONS

 

    

Tenant

  

Lease

1.    The Goodyear Tire and Rubber Co.    Office Lease dated December 21, 2001, between iStar GT, L.P., as landlord and The Goodyear Tire and Rubber Company, as tenant
2.    Google Inc.    Office Lease dated November 10, 2004, between SFI I, LLC, as landlord and Google, Inc., as tenant
3.    Baxter Healthcare Corp.    Office Lease dated March 5, 2007, between iStar CTL I L.P., as landlord and Baxter Healthcare Corporation, as tenant
4.    DirecTV, Inc.    Office Lease dated June 2, 2006, between Trinet Realty Investors V, Inc., as landlord and DirecTV, Inc., as tenant
5.    Sybase, Inc.    Office Lease dated January 28, 2000, between WDS Dublin, LLC, as landlord and Sybase, Inc., as tenant
6.    Northrop Grumman & Company    Office Lease dated July 27, 1999, between West*Group Properties LLC, as landlord and PRC Inc., as tenant


SCHEDULE 5.1(v)

DESCRIPTION OF REA’s

None.


SCHEDULE A-10

PROPERTY MANAGERS/TENANT MANAGERS

Property Managers

 

    

Property Manager

  

Property

1.    River Rock Real Estate Group    5853 & 5863 Rue Ferrari Drive, San Jose, California
2.    CB Richard Ellis, Inc.    161 Inverness Drive West, Englewood, Colorado
3.    Kennedy-Wilson Properties Ltd.    2625 Shadelands Drive, Walnut Creek, California

Tenant Managers

 

    

Tenant Manager

  

Property

1.    Abbott Medical Optics, Inc.    510 Cottonwood Drive, Milpitas, California
2.    Sybase, Inc.    One and Three Sybase Drive, Dublin, California
3.    Google, Inc.    1545/1565/1585 Charleston Place, Mountain View, California
4.    The Goodyear Tire and Rubber Company   

(1) 301 Apache Trail, Terrell, Texas

 

(2) 300 S. Salem Church Rd., York, Pennsylvania

 

(3) 201 King Mill Court, McDonough, Georgia

 

(4) 500 Business Center Drive, Stockbridge, Georgia

 

(5) 3095 Corporate Drive, DeKalb, Illinois

 

(6) 2750 Creekside Parkway, Lockbourne, Ohio

5.    ADS Alliance Data Systems, Inc.    17201 Waterview Parkway, Dallas, Texas
6.    Baxter Healthcare Corp.    440 North Fairway Drive, Vernon Hills, Illinois
7.    Travelport International, LLC    6901 S. Havana Street, Englewood, Colorado
8.    Arbella Capital Corporation    1100 Crown Colony Drive, Quincy, Massachusetts
9.    Northrop Grumman Information Technology, Inc.    7555 Colshire Drive, McLean, Virginia

 

Schedule A-10 - Page 1


SCHEDULE A-11

EARN-OUT ADVANCE REQUIREMENTS

Attached

 

Schedule A-10 - Page 1

Exhibit 10.2

Loan No. 31-0909757

LOAN AGREEMENT

by and between

THE ENTITIES SET FORTH ON SCHEDULE 1,

collectively, as Borrower

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

and

BANK OF AMERICA, N.A.,

collectively, as Lender

Dated as of: June 25, 2010

Dividend Capital Fixed Rate Office Portfolio

Document Prepared By:

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.


TABLE OF CONTENTS

 

          Page

ARTICLE 1. DEFINITIONS

   1

1.1

   DEFINED TERMS    1

ARTICLE 2. LOAN; LOAN DOCUMENTS; SECURITY

   1

2.1

   LOAN    1

2.2

   INTEREST; PAYMENTS    3

2.3

   LATE CHARGE; DEFAULT RATE    3

2.4

   MAXIMUM RATE PERMITTED BY LAW    4

2.5

   LOAN DOCUMENTS    4

2.6

   SECURITY    4

ARTICLE 3. BORROWER’S LIABILITY

   4

3.1

   BORROWER’S LIABILITY    4

ARTICLE 4. IMPOUNDS

   6

4.1

   TAX IMPOUND    6

4.2

   INSURANCE IMPOUND    6

4.3

   ADDITIONAL IMPOUNDS    7

4.4

   CASH MANAGEMENT AGREEMENT    7

4.5

   GENERAL    7

4.6

   GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS    7

ARTICLE 5. REPRESENTATIONS AND WARRANTIES

   8

5.1

   REPRESENTATIONS AND WARRANTIES    8

5.2

   REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPE STATUS    11

ARTICLE 6. HAZARDOUS MATERIALS

   19

6.1

   HAZARDOUS MATERIALS INDEMNITY AGREEMENT    19

ARTICLE 7. COVENANTS OF BORROWER

   19

7.1

   COSTS AND EXPENSES    19

7.2

   ERISA COMPLIANCE    20

7.3

   MANAGEMENT OF PROPERTY; BROKERAGE AGREEMENTS; OTHER AGREEMENTS    20

7.4

   COVENANTS - LEASES; MAJOR LEASES    21

7.5

   INTENTIONALLY DELETED    23

7.6

   RIGHT OF SUBORDINATION    23

7.7

   FURTHER ASSURANCES    23

7.8

   ASSIGNMENT    23

7.9

   EXISTENCE    23

7.10

   COMPLIANCE WITH LAWS, ETC    23

7.11

   LITIGATION    23

7.12

   MERGER, CONSOLIDATION, TRANSFER OF ASSETS    24

7.13

   ACCOUNTING RECORDS    24

7.14

   PAYMENT OF TAXES AND CLAIMS    24

7.15

   MAINTENANCE OF PROPERTY    24

 

i


7.16

   QUALIFICATION, NAME; EXISTENCE    24

7.17

   ALTERATIONS    24

7.18

   COMPLIANCE WITH PATRIOT ACT    25

7.19

   ACCESS TO PROPERTY    25

7.20

   NOTICE OF DEFAULT    25

7.21

   COOPERATE IN LEGAL PROCEEDINGS    25

7.22

   PERFORMANCE BY BORROWER    25

7.23

   ESTOPPEL CERTIFICATES    26

7.24

   INTENTIONALLY OMITTED    26

7.25

   NO JOINT ASSESSMENT    26

7.26

   REA COVENANTS    27

ARTICLE 8. FINANCIAL COVENANTS

   27

8.1

   STATEMENTS REQUIRED    27

8.2

   FORM; WARRANTY    28

8.3

   CHARGE FOR LATE DELIVERY    28

ARTICLE 9. DEFAULTS AND REMEDIES

   29

9.1

   DEFAULT    29

9.2

   ACCELERATION    30

9.3

   RIGHTS AND REMEDIES    30

ARTICLE 10. NO PREPAYMENT - DEFEASANCE ONLY

   30

ARTICLE 11. DEFEASANCE - FULL OR PARTIAL

   31

ARTICLE 12. INSURANCE

   35

12.1

   REQUIRED INSURANCE    35

12.2

   ADDITIONAL INSURANCE    38

12.3

   POLICY REQUIREMENTS    38

12.4

   MAINTENANCE OF INSURANCE    39

12.5

   TERRORISM COVERAGE    39

12.6

   CERTAIN RIGHTS OF LENDER    40

12.7

   CASUALTY AND CONDEMNATION; RESTORATION PROCEEDS    40

12.8

   RESTORATION    41

12.9

   DISBURSEMENT    42

ARTICLE 13. INDEMNITY

   43

13.1

   INDEMNITY    43

13.2

   DUTY TO DEFEND, LEGAL FEES AND OTHER FEES AND EXPENSES    43

13.3

   MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION    43

13.4

   ERISA INDEMNIFICATION    44

13.5

   SPECIAL SERVICING    44

ARTICLE 14. TRANSFER AND SUBSTITUTION OF PROPERTY

   44

14.1

   TRANSFER OF PROPERTY; ASSUMPTION OF LOAN    44

14.2

   SUBSTITUTION    45

ARTICLE 15. DUE ON SALE/ENCUMBRANCE

   51

15.1

   DUE ON SALE/ENCUMBRANCE    51

 

ii


15.2

   REPLACEMENT MEZZANINE DEBT    53

ARTICLE 16. MISCELLANEOUS PROVISIONS

   54

16.1

   FORM OF DOCUMENTS    54

16.2

   NO THIRD PARTIES BENEFITED    54

16.3

   NOTICES    54

16.4

   ONGOING CREDIT AUTHORIZATION    54

16.5

   ATTORNEY-IN-FACT    54

16.6

   ACTIONS    54

16.7

   RIGHT OF CONTEST    55

16.8

   RELATIONSHIP OF PARTIES    55

16.9

   DELAY OUTSIDE LENDER’S CONTROL    55

16.10

   ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT    55

16.11

   IMMEDIATELY AVAILABLE FUNDS    56

16.12

   LOAN SALES AND LOAN PARTICIPATIONS; DISCLOSURE OF INFORMATION    56

16.13

   LENDER’S AGENTS    57

16.14

   AUTHORIZATION TO FILE FINANCING STATEMENTS    57

16.15

   TAX SERVICE    57

16.16

   ADVERTISING    57

16.17

   COMMERCIAL LOAN    57

16.18

   DISBURSEMENT OF LOAN PROCEEDS; LIMITATION OF LIABILITY    57

16.19

   SEVERABILITY    58

16.20

   INTENTIONALLY OMITTED    58

16.21

   HEADINGS    58

16.22

   SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY    58

16.23

   GOVERNING LAW; JURISDICTION    58

16.24

   WAIVER OF RIGHT TO TRIAL BY JURY    59

16.25

   INTEGRATION; INTERPRETATION    60

16.26

   COUNTERPARTS    60

16.27

   AMENDMENTS    60

16.28

   CONSENTS AND APPROVALS; CONSTRUCTION    60

16.29

   BRING DOWN OF REPRESENTATIONS; SURVIVAL OF WARRANTIES; CUMULATIVE    60

16.30

   INTENTIONALLY OMITTED    61

16.31

   INTENTIONALLY OMITTED    61

16.32

   INTENTIONALLY OMITTED    61

16.33

   EXHIBITS; SCHEDULES    61

16.34

   CONFLICT    61

16.35

   SECURITIZATION INDEMNIFICATION    61

16.36

   BORROWER WAIVERS    64

16.37

   REMEDIES OF BORROWER    64

16.38

   MULTIPLE BORROWERS    64

16.39

   CO-LENDERS    65

EXHIBITS AND SCHEDULES

 

Exhibit A       Definitions
Exhibit B       Property/Legal Description/Address/Information
Exhibit C       List of Loan Documents and Closing Documents
Exhibit D       Litigation Disclosures
Exhibit E       Additional Impounds
Exhibit E.1       List of Work
Exhibit E.2       Designated TI Impound Amount

 

iii


Exhibit F       Allocated Loan Amount for each Individual Property
Exhibit G       Additional Insurance Provisions
Schedule 1       Borrowers
Schedule 5.1(v)       Description of REA’s
Schedule A-10       Property Managers/Tenant Managers

 

iv


LOAN AGREEMENT

THIS LOAN AGREEMENT (this “ Agreement ”) is made and entered into June 25, 2010, by and between THE ENTITIES SET FORTH ON SCHEDULE 1 (each, a “ Borrower ” and, collectively, “ Borrower ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION , together with its successors and assigns, and BANK OF AMERICA, N.A. , together with its successors and assigns (each, a “ Co-Lender ” and collectively, “ Lender ”).

R E C I T A L S

Borrower desires to borrow from Lender, and Lender agrees to loan to Borrower, the amounts described below pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, Borrower and Lender agree as follows:

ARTICLE 1. DEFINITIONS

 

1.1 DEFINED TERMS .

Unless otherwise defined in the text of this Agreement, the capitalized terms generally used in this Agreement shall have the meanings defined or referenced in Exhibit A attached hereto and incorporated herein for all purposes.

ARTICLE 2. LOAN; LOAN DOCUMENTS; SECURITY

 

2.1 LOAN .

 

  (a) Subject to the terms of this Agreement, Lender agrees to lend to Borrower, and Borrower agrees to borrow from Lender, the maximum principal sum of TWO HUNDRED NINETY-TWO MILLION AND 00/100THS DOLLARS ($292,000,000.00), which sum shall be composed of $185,000,0000.00 as the initial advance (“ Initial Advance ”) and $107,000,000.00 as the Earn-Out Advance (as defined below), which sums shall be evidenced by the Note. The Loan shall be secured by the security interests and liens granted pursuant to certain of the Security Documents as more particularly set forth therein. Interest shall accrue, and be payable, in respect of the Loan as provided herein below.

 

  (b) Lender shall disburse to the Borrower an amount equal to $107,000,000.00 (the “ Earn-Out Advance ”) of the Loan provided the Borrower satisfies the following conditions to Lender’s reasonable satisfaction:

 

  (i) No Default exists on the date of disbursement of the Earn-Out Advance;

 

  (ii) Borrower delivers to Lender at least ten (10) days prior to the date of the Earn-Out Advance (the “ Earn-Out Disbursement Date ”) written notice requesting the Earn-Out Advance, provided, however that the Earn-Out Disbursement Date is no later than sixty (60) days from the date hereof. If any such notice shall have been given by Borrower, Borrower shall be permitted to revoke such notice in writing on or prior to the Earn-Out Disbursement Date, provided Borrower pays all of Lender’s reasonable third party expenses incurred in connection with the proposed Earn-Out Advance. Notwithstanding the foregoing, if the conditions to the Earn-Out Advance set forth in this Section 2.1(b) are satisfied within the sixty (60) day period set forth above, Borrower shall be required to accept the Earn-Out Advance and the Northrop VA Property shall be included as a Property and be encumbered by the liens created pursuant to the Loan Documents;

 

  (iii)

iStar NG LP, a Delaware limited partnership (“ LP Owner ”) or a Delaware limited liability company wholly owned, directly or indirectly, by TRT NOIP Fixed Real Estate Holdco, a Delaware limited liability company, (either such entity, “ Northrop VA Borrower ”) shall join each of the Loan Documents as a borrower thereto and shall deliver

 

1


 

to Lender a Deed of Trust and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing), an Absolute Assignment of Leases and Rents and financing statements, each in form and substance as such documents delivered with respect to the other Properties as of the date hereof, encumbering the Northrop VA Property;

 

  (iv) Borrower shall enter into such amendments to the Loan Documents necessary to reflect the Earn-Out Advance, including, but not limited to, amendments to the Mortgages relating to applicable recording and/or intangible taxes for the Properties located at 1600-1601 SW 80th Street, Plantation, Florida, 3201 Columbia Road, Richfield, Ohio, and 11493 Sunset Hills Road, Reston, Virginia;

 

  (v) Borrower shall deliver to Lender a letter executed by Northrop VA waiving its right of first offer to purchase the Northrop VA Property under its Lease in connection with the purchase by Northrop VA Borrower of the Northrop VA Property (or purchase at the closing (1) by TRT NOIP Colshire - McLean GP LLC, a Delaware limited liability company, of the general partner interests of LP Owner held by iStar NG GenPar Inc., a Delaware corporation and (2) by TRT NOIP Colshire - McLean LLC, a Delaware limited liability company, of the limited partner interests of LP Owner held by iStar NG Inc., a Delaware corporation), which such letter shall be in form and substance satisfactory to Lender in its reasonable discretion;

 

  (vi) Northrop VA Borrower shall deliver to Lender (1) an officer’s certificate certifying that there have been no material changes to the Northrop VA Property since the date of June 4, 2010, as set forth on that certain survey delivered to Lender prior to the date hereof and (2) title insurance, in form and substance delivered on the date hereof with regards to the other Properties, with respect to the Northrop VA Property (A) insuring that no encumbrances affect the Northrop VA Property other than Permitted Encumbrances (and with respect to clause (b) of the definition of Permitted Encumbrances, no material changes to such encumbrances other than as set forth in that certain pro-forma title policy delivered to Lender on or prior to the date hereof), (B) in the amount of the Earn-Out Advance disbursed to the Borrower, subject to adjustment (up to 125%) in the event a tie-in endorsement is not obtained and (C) shall contain such endorsements as are reasonably required by Lender with respect to the other Properties previously encumbered by the Mortgages;

 

  (vii) Borrower shall deliver to Lender updated tie-in endorsements, me-too endorsements and such other revisions to the title insurance policies issued to Lender on the date hereof with respect to the other Properties to reflect the Earn-Out Advance, to the extent any of the foregoing is available in the states where the Properties are located;

 

  (viii) Northrop VA Borrower shall deliver to Lender with respect to the Northrop VA Property and the Northrop VA Borrower updates to the local law enforceability opinion, the New York enforceability opinion, the insolvency opinion and Delaware state law opinions, each delivered to Lender at closing, in form and substance reasonably acceptable to Lender;

 

  (ix) Borrower shall deliver such other certificates, amendments to organizational documents, and other documents as may be reasonably requested by Lender to reflect the Earn-Out Advance;

 

  (x)

If the Earn-Out Disbursement Date occurs prior to the Due Date occurring in August, 2010, then Borrower shall pay to Lender on the Due Date occurring in August, 2010, the P&I Payment Amount as set forth in clause (ii) of the definition thereof, less an amount equal to interest on the amount of the Earn-Out Advance calculated at the Note Rate for the number of days occurring in July, 2010, prior to the Earn-Out Disbursement Date. If

 

2


 

the Earn-Out Disbursement Date occurs on or after the Due Date occurring in August, 2010, then Borrower shall pay to Lender (A) on the Earn-Out Disbursement Date an amount equal to $101,899.04 which represents the principal payment that would have been due on the Due Date occurring in August, 2010, with respect to the Earn-Out Advance, and (B) on the Due Date occurring in September, 2010, the P&I Payment Amount as set forth in clause (ii) of the definition thereof, less an amount equal to interest on the amount of the Earn-Out Advance calculated at the Note Rate for the number of days occurring in August, 2010 prior to the Earn-Out Disbursement Date; and

 

  (xi) Borrower pays all of Lender’s third-party costs (including reasonable attorney’s fees) with respect to the Earn-Out Advance. Lender shall reasonably cooperate with Borrower in structuring the mortgages and the Earn-Out Advance transaction so as to minimize recordation and mortgage taxes, including such taxes in the Commonwealth of Virginia, and title insurance premiums.

 

2.2 INTEREST; PAYMENTS .

 

  (a) Interest Accrual . Interest on the outstanding principal balance of the Note shall accrue from the Disbursement Date at the Note Rate calculated on an Actual/360 Basis. For the avoidance of doubt, interest will accrue only on the Initial Advance commencing on the date hereof until such time as the Earn-Out Advance is made.

 

  (b)

Payments . Monthly payments, each in the P&I Payment Amount, shall commence on the First P&I Due Date and continue on each Due Date thereafter. In addition, if the Disbursement Date is not the first (1 st ) day of a calendar month, an interest-only payment pursuant to subsection (a)  above shall be due on the Disbursement Date for interest due from and including the Disbursement Date to the last day of the month ending prior to the First Due Date. On the Maturity Date, all unpaid principal and accrued but unpaid interest shall be due and payable in full. All interest shall be paid in arrears. Except as otherwise specifically provided in this Agreement or the other Loan Documents, all payments and deposits due under the Note or the other Loan Documents shall be made to Lender not later than 2:00 p.m., California time, on the day on which such payment or deposit is due. Any funds received by Lender after such time shall, for all purposes, be deemed to have been received on the next succeeding Business Day.

 

  (c) Acknowledgments . Borrower acknowledges that the P&I Payment Amount was determined using a 30/360 Basis despite the fact that interest on the Note accrues on an Actual /360 Basis. Interest calculated on an Actual/360 Basis exceeds interest calculated on a 30/360 Basis and, therefore: (a) a greater portion of each monthly installment of principal and interest will be applied to interest using the Actual/360 Basis than would be the case if interest accrued on a 30/360 Basis; and (b) the unpaid principal balance of the Note on the Maturity Date will be greater using the Actual/360 Basis than would be the case if interest accrued on a 30/360 Basis.

 

  (d) Application of Payments . All payments paid by Borrower to Lender in connection with the obligations of Borrower under this Agreement and under the other Loan Documents shall be applied in the order of priority as set forth in the Cash Management Agreement. The P&I Payment Amount shall be applied (a) first, to accrued but unpaid interest on the Note; and (b) second, to the unpaid principal balance of the Note. Borrower irrevocably waives the right to direct the application of any payments at any time received by Lender from or on behalf of Borrower, and during the continuance of a Default, Borrower agrees that Lender shall have the continuing exclusive right to apply any payments to the then due and owing obligations of Borrower in such order of priority as Lender may deem advisable.

 

2.3 LATE CHARGE; DEFAULT RATE .

 

  (a)

Late Charge . If all or any portion of any payment (including, without limitation, any payment of any interest, the P&I Payment Amount, Impounds or other deposit(s)) required hereunder (other than the payment due on the Maturity Date) is not paid or deposited on or before the day on which

 

3


 

the payment is due, Borrower shall pay a late or collection charge, as liquidated damages, equal to four percent (4%) of the amount of such unpaid payment (herein called “ Late Charge ”). If all or any portion of the payment due on the Maturity Date is paid after the Maturity Date and on a date which is not the first (1st) day of a calendar month, Borrower shall pay a late or collection charge, as liquidated damages, equal to the interest which would have accrued on such amount during the period commencing on the date payment of such amount is actually made and ending on the last day of the calendar month in which payment of such amount is actually made. Borrower acknowledges that Lender will incur additional expenses as a result of any late payments or deposits hereunder, which expenses would be impracticable to quantify, and that Borrower’s payments under this Section 2.3 are a reasonable estimate of such expenses.

 

  (b) Default Rate . Commencing upon a Default and continuing until such Default shall have been cured by Borrower, all sums owing on the Loan shall bear interest at the Default Rate.

 

2.4 MAXIMUM RATE PERMITTED BY LAW .

Neither this Agreement, the Note nor any of the other Loan Documents shall be construed to require the payment or permit the collection of any interest or any late payment charge in excess of the maximum rate permitted by law. If any such excess interest or late payment charge is provided for under this Agreement, the Note or any of the other Loan Documents or if this Agreement, the Note or any of the other Loan Documents shall be adjudicated to provide for such excess, Borrower shall not be obligated to pay such excess notwithstanding any other provision of the Loan Documents. If Lender shall collect amounts which are deemed to constitute interest and which would increase the effective interest rate to a rate in excess of the maximum rate permitted by applicable law, all such amounts deemed to constitute interest in excess of the maximum legal rate shall, upon such determination, at the option of Lender, be returned to Borrower or credited against the outstanding principal balance of the Loan.

 

2.5 LOAN DOCUMENTS .

Borrower shall deliver to Lender concurrently with this Agreement each of the Loan Documents, properly executed and in recordable form, as applicable.

 

2.6 SECURITY .

The Loan and all obligations of Borrower arising hereunder and under the other Loan Documents shall be secured by (i) the Mortgage creating a senior priority lien on the Property and the Collateral, (ii) the other Loan Documents and any security interests and liens created thereby, and (iii) the Impounds established pursuant to this Agreement. Notwithstanding the foregoing or anything contained in this Agreement or the other Loan Documents to the contrary, it is expressly understood and acknowledged by the parties hereto that neither the Guaranty nor the Hazardous Materials Indemnity Agreement shall constitute security for the Loan.

ARTICLE 3. BORROWER’S LIABILITY

 

3.1 BORROWER’S LIABILITY .

 

  (a) Limitation . Except as otherwise provided in this Article 3 , Lender’s recovery against Borrower under this Agreement and the other Loan Documents shall be limited solely to the Property and the Collateral.

 

  (b)

Exceptions; Limited Liability . Nothing contained in this Article 3 or elsewhere in this Agreement or the other Loan Documents, however, shall limit in any way the personal liability of Borrower owed to Lender for any Losses (defined below) incurred by Lender with respect to any of the following matters: (i) fraud or intentional or willful material misrepresentation by Borrower or Guarantor, or any Affiliate of Borrower or Guarantor under the control of Borrower or Guarantor, respectively; (ii) commission of a criminal act by Borrower, Guarantor, or any Affiliate of Borrower or Guarantor under the control of Borrower or Guarantor, respectively, which results

 

4


 

in a forfeiture of the Property; (iii) material intentional physical waste of the Property or the Collateral; (iv) failure to pay property or other taxes, assessments assessed against the Property or charges which could become Liens on the Property (other than (x) amounts paid to Lender for taxes, assessments or charges pursuant to Impounds and where Lender elects (during the continuance of a Default or otherwise) not to apply such funds toward payment of the taxes, assessments or charges owed or (y) taxes, assessments or charges owed that are contested strictly in accordance with the terms of the Loan Documents) to the extent that the revenue from the Property is sufficient to pay such amount; (v) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto; (vi) failure to deliver any insurance or condemnation proceeds or awards or any security deposits received by Borrower to Lender or to otherwise apply such sums as required under the terms of the Loan Documents or any other instrument now or hereafter securing the Loan; (vii) failure to apply any rents, royalties, accounts, revenues, income, issues and profits which are collected or received by Borrower during the period of any Default or after acceleration of the indebtedness and other sums owing under the Loan Documents to the payment of either (A) such indebtedness or other sums due Lender or (B) the normal and necessary operating expenses of the Property; (viii) any breach by Borrower of any covenant in this Agreement or in the Mortgage regarding Hazardous Materials or in any indemnity or other agreement regarding Hazardous Materials executed by Borrower in favor of Lender in connection with the Loan (including, without limitation, the Hazardous Materials Indemnity Agreement), or any representation or warranty of Borrower regarding Hazardous Materials contained therein proving to have been untrue in any material respect when made; (ix) any transfer taxes (or similar fees or taxes) incurred in connection with a transfer of the Property resulting from a foreclosure of the Mortgage or a deed-in-lieu of foreclosure of the Property; (x) Borrower’s failure to comply with the provisions of Sections 5.2 (to the extent such failure to comply in itself, or in the aggregate with other violations of Section 5.2 results in the substantive consolidation of Borrower) or Section 16.35 of this Agreement; (xi) Borrower’s or Guarantor’s failure to satisfy the Indemnification Obligations (as defined in the Lockbox Agreement) pursuant to the terms of the Lockbox Agreement; (xii) Borrower’s failure to deliver the Letter of Credit Assignment in accordance with the terms of Section 7.4(g) of this Agreement or (xiii) a material misrepresentation with respect to the representations in Section 5.3 hereof. The term “ Losses ” as used herein shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities and any impairment of Lender’s security for the Loan), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including, but not limited to, reasonable legal fees and other costs of defense).

 

  (c) Exceptions; Full Recourse . Notwithstanding the foregoing, or anything to the contrary contained in this Agreement or the other Loan Documents, the limitation on recourse set forth in Article 3.1(a) and (b)  above shall be null and void and completely inapplicable, and Borrower shall be fully and personally liable for the payment and performance of all obligations set forth in this Agreement and the other Loan Documents, including the payment of all principal, interest and other amounts under the Note, (i) in the event the Property or the Collateral shall become an asset in (x) a voluntary bankruptcy or insolvency proceeding or other voluntary Material Action, or (y) an involuntary bankruptcy or insolvency proceeding or other involuntary Material Action, which, in either case, is consented to or colluded by Borrower, Guarantor, or an Affiliate of Borrower, or Guarantor controlled by Borrower or Guarantor, respectively, or filed by Borrower or Guarantor or an Affiliate of Borrower or Guarantor controlled by Borrower or Guarantor, respectively, and which is not dismissed within ninety (90) days of filing; or (ii) in the event of a Default resulting from a Prohibited Property Transfer or a Prohibited Equity Transfer (excluding, however, any default under, or violation of, the terms of Section 7.4 of this Agreement).

 

  (d)

No Waiver, Release or Impairment . Nothing contained in this Article 3 shall be deemed to waive, release, affect or impair the indebtedness evidenced by the Loan Documents or the obligations of Borrower under the Loan Documents, or the liens and security interests created by the Loan Documents, or Lender’s rights to enforce its rights and remedies under the Loan

 

5


 

Documents and under any guaranty or indemnity provided herein, in the Loan Documents or in connection with the Loan, or otherwise provided in equity or under applicable law, including, without limitation, the right to pursue any remedy for injunctive or other equitable relief, or any suit or action in connection with the preservation, enforcement or foreclosure of the liens, mortgages, assignments and security interests which are now or at any time hereafter security for the payment and performance of all obligations under this Agreement or in the other Loan Documents.

 

  (e) Prevail and Control . The provisions of this Article 3 shall prevail and control over any contrary provisions elsewhere in this Agreement or the other Loan Documents.

ARTICLE 4. IMPOUNDS

 

4.1 TAX IMPOUND .

Borrower shall deposit with Lender the following amounts (collectively, “ Tax Impound ”): $134,748.00 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the real estate taxes and assessments payable by Borrower with respect to the Property (collectively, “ Taxes ”) at least thirty (30) days prior to each date on which Taxes become delinquent (“ Delinquency Date ”). The initial estimated monthly amount to be deposited by Borrower for Taxes on each Due Date is $40,374.00. If Lender reasonably determines at any time that the Tax Impound will not be sufficient to pay any Taxes at least thirty (30) days prior to the Delinquency Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Delinquency Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the Business Day immediately preceding the Delinquency Date. So long as no Default exists, Lender shall apply the Tax Impound to the payment of the Taxes. Deposits into the Tax Impound shall be waived, provided no Default is continuing, with respect to any Taxes which a tenant is required to pay directly to the taxing authority pursuant to the terms of its Lease, provided (i) Borrower delivers, or causes to be delivered to Lender, evidence of the timely payment of such Taxes, (ii) such tenant has exercised all applicable renewal terms under its Lease within the time such renewals are required to be exercised and (iii) such tenant is not in material default of its obligations under its Lease beyond all applicable notice and cure periods.

 

4.2 INSURANCE IMPOUND .

Borrower shall deposit with Lender the following amounts (collectively, “ Insurance Impound ”): $0 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the premiums for insurance required to be maintained by Borrower hereunder (“ Insurance Premiums ”) at least thirty (30) days prior to the date on which the current such insurance policies expire (“ Insurance Expiration Date ”). The initial estimated monthly amount to be deposited by Borrower for Insurance Premiums on each Due Date is $0. If Lender reasonably determines at any time that the Insurance Impound will not be sufficient to pay the Insurance Premiums at least thirty (30) days prior to the Insurance Expiration Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Insurance Expiration Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the day immediately preceding the Insurance Expiration Date. So long as no Default exists, Lender shall apply the Insurance Impound to the payment of the Insurance Premiums. Deposits into the Insurance Impound shall be waived (i) for any Property covered by a blanket insurance policy which complies with the requirements of Article 12 , and (ii) provided no Default is continuing, with respect to any Insurance Premiums which a tenant is required to pay directly to the insurance provider pursuant to the terms of its Lease, provided (x) Borrower delivers, or

 

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causes to be delivered to Lender, evidence of the timely payment of such Insurance Premiums, (y) such tenant has exercised all applicable renewal terms under its Lease within the time such renewals are required to be exercised and (z) such tenant is not in material default of its obligations under its Lease beyond all applicable notice and cure periods.

 

4.3 ADDITIONAL IMPOUNDS .

Borrower shall deposit with Lender any additional Impounds in the manner prescribed in Exhibit E attached hereto.

 

4.4 CASH MANAGEMENT AGREEMENT .

 

  (a) Borrower shall enter into the Lockbox Agreement which shall govern the collection of Gross Income and transfer of Gross Income into an account established under the Cash Management Agreement.

 

  (b) Borrower shall enter into the Cash Management Agreement which shall govern the holding and disbursement of Gross Income during the term of the Loan.

 

  (c) In the event of a Cash Trap Event Period (as defined in the Cash Management Agreement), all Excess Cash Flow (as defined in the Cash Management Agreement) shall be deposited into the Excess Cash Flow Reserve Account (as defined in the Cash Management Agreement), as more particularly set forth in Section 2.5(b) of the Cash Management Agreement.

 

4.5 GENERAL .

All deposits required to be made by Borrower under this Article 4 , including, without limitation, the additional impounds set forth on Exhibit E attached hereto, if any, are herein collectively called “ Impounds .” For so long as any of the Impounds required under this Section 4 are in effect and if Lender reasonably determines that an Impound was not estimated properly and a deficiency exists, Lender shall notify Borrower of such deficiency in writing and Borrower shall deposit or cause the applicable tenant to deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice. Lender shall have the right, upon prior advance written notice and subject to the tenant’s rights under its Lease, to enter upon the Property at all reasonable times, including without limitation, prior to any disbursement of Impounds, to inspect any work in process and/or completed for which Impounds are now or hereafter required, but Lender shall not be obligated to supervise or inspect any such work or to inform Borrower or any third party regarding any aspect of any such work. Borrower shall pay to Lender all reasonable out-of-pocket third party costs and expenses paid or incurred by Lender from time to time in connection with any request of Borrower for a disbursement of funds from the Impounds (other than the Tax Impound and the Insurance Impound). Borrower authorizes Lender to disburse directly to Lender, from the Impounds or from funds to be disbursed to Borrower from the Impounds, such sums as may be necessary, at any time and from time to time, to pay all such reasonable third-party costs and expenses.

 

4.6 GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS .

As security for payment of the Loan and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, all Borrower’s right, title and interest in and to all Impounds. Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Impound (or account in which such Impounds are held), or permit any lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements to be filed thereon, except those naming Lender as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of a Default, Lender may apply all or any part of the Impounds against the amounts outstanding under the Loan in any order and in any manner as Lender shall elect in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the liens and security interests securing the Loan or exercise its other rights under the Loan

 

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Documents. The Impounds shall not constitute trust funds and may be commingled with other monies held by Lender. All interest which accrues on the foregoing Impounds except for the Tax Impound and the Insurance Impound (for which no interest shall be paid) shall be at a rate established by Lender or its servicing agent, which may or may not be the highest rate then available, shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment in full of Borrower’s obligations under the Loan Documents, all remaining Impounds, if any, shall be promptly disbursed to Borrower.

ARTICLE 5. REPRESENTATIONS AND WARRANTIES

 

5.1 REPRESENTATIONS AND WARRANTIES .

As a material inducement to Lender’s entry into this Agreement, each Borrower, as to itself, represents and warrants to Lender as of the Effective Date:

 

  (a) Legal Status . Each of Borrower and, if its managing Person such as a general partner, manager, managing member, or similar Person (each, a “ Managing Entity ”) is an entity formed or organized under the laws of any Governmental Authority, each such Managing Entity, is duly formed or organized and existing and in good standing under the laws of the state in which such entity is formed or organized. Borrower and, if applicable, its Managing Entity, is currently qualified or licensed (as applicable) and shall remain qualified or licensed to do business in each jurisdiction in which the nature of its business requires it to be so qualified or licensed under applicable law (including, as to Borrower and, if required by the law of such jurisdiction, its Managing Entity, the jurisdiction in which the Property is located).

 

  (b) Authorization and Validity . The execution and delivery of the Loan Documents to which Borrower is a party have been duly authorized by Borrower and the Loan Documents constitute valid and binding obligations of Borrower or the party which executed the same, enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights, or by the application of rules of equity.

 

  (c) Violations . The execution, delivery and performance by Borrower of each of the Loan Documents do not violate any provision of any law or regulation applicable to the Borrower and/or the Property, or result in any breach or default under any contract, obligation, indenture or other instrument to which Borrower is a party or by which Borrower is bound.

 

  (d) Litigation . There are no pending or to Borrower’s knowledge threatened (in writing) actions, claims, investigations, suits or proceedings before any Governmental Authority, court or administrative agency which would have a Material Adverse Effect other than as described on Exhibit D attached hereto.

 

  (e) Financial Statements . The financial statements of Borrower and of Guarantor previously delivered by Borrower to Lender: (i) are materially complete and correct; (ii) present fairly the financial condition of such party; and (iii) have been prepared in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan, or other accounting standards approved by Lender. Since the date of such financial statements, there has been no material adverse change in such financial condition, nor have any assets or properties reflected on such financial statements been sold, transferred, assigned, mortgaged, pledged or encumbered which would have a Material Adverse Effect, except as previously disclosed in writing by Borrower or Guarantor to Lender.

 

  (f)

Reports . To the best of Borrower’s knowledge, all reports, documents, instruments and written information delivered by Borrower or Guarantor to Lender in connection with the Loan, as of the date delivered: (i) are correct in all material respects and sufficiently complete to give Lender

 

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accurate knowledge of their subject matter thereof; and (ii) do not contain any material misrepresentation of a material fact or omission of a material fact which omission makes the provided information misleading in any material respect.

 

  (g) Income Taxes . There are no pending assessments or adjustments of Borrower’s income tax payable with respect to any year.

 

  (h) Subordination . There is no agreement or instrument to which Borrower is a party or by which Borrower is bound that would require the subordination in right of payment of any of Borrower’s obligations under the Note to an obligation owed to another party.

 

  (i) ERISA Matters . Borrower is not an employee benefit plan as defined in Section 3.(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), which is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Code (each of the foregoing hereinafter referred to individually and collectively as a “ Plan ”). Borrower’s assets do not constitute “plan assets” of any plan within the meaning of Department of Labor Regulation Section 2510.3-101. Borrower will not transfer or convey the Property to a Plan or to a person or entity whose assets constitute such “plan assets,” and Borrower will not be reconstituted as a Plan or as an entity whose assets constitute “plan assets.” No Lease is a Plan or an entity whose assets constitute such “plan assets,” and Borrower will not enter into any Lease with a Plan or an entity whose assets constitute such “plan assets.” With respect to the Loan, Borrower is acting on Borrower’s own behalf and not on account of or for the benefit of any Plan.

 

  (j) Leases; Rent Roll . Except as disclosed in the rent roll relating to the Property (the “ Rent Roll ”) and the aging report and tenant estoppels relating to the Property, each delivered to and approved by Lender in connection with the closing of the Loan, (a) Borrower is the sole owner of the entire lessor’s interest in the Leases; (b) the Leases are valid and enforceable and in full force and effect; (c) all of the Leases are arms-length agreements with bona fide, independent third parties; (d) to Borrower’s knowledge, no party under any Lease is in default; (e) to Borrower’s knowledge, all Payments due have been paid in full and no tenant is in arrears in its payment of any Payments; (f) none of the Payments reserved in the Leases have been assigned or otherwise pledged or hypothecated by Borrower; (g) to Borrower’s knowledge, none of the Payments have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (h) the premises demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; (i) to Borrower’s knowledge, there exist no offsets or defenses to the payment of any portion of the Payments and Borrower has no monetary obligation to any tenant under any Lease; (j) Borrower has received no notice from any tenant challenging the validity or enforceability of any Lease; (k) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (l) the Leases are valid and enforceable against Borrower and the tenants set forth therein; (m) other than with respect to those Leases set forth on Schedule 5.1(j) , attached hereto, no Lease contains an option to purchase, right of first refusal to purchase, right of first refusal to lease additional space at the Property, or any other similar provision; (n) no person or entity has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (o) to Borrower’s knowledge, no tenants have exercised any right to “go dark” that they may have under their Leases; (p) all security deposits relating to the Leases reflected on the certified rent roll delivered to Lender have been collected by Borrower; (q) other than as identified on Exhibit E-2 attached hereto, no brokerage commissions or finders fees are due and payable regarding any Lease; (r) each tenant is in actual, physical occupancy of the premises demised under its Lease and is paying full rent under its Lease; and (s) no tenant under any Major Lease is, to Borrower’s knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.

 

  (k) Compliance with Laws; Permits . To the Borrower’s knowledge, the Property complies in all material respects with all applicable federal, state and local laws, rules and regulations. Either Borrower or the tenant under the applicable Lease, as applicable, holds all permits, franchises, licenses and other authorizations necessary to enable the Property to be operated in compliance with applicable law.

 

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  (l) Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws . Borrower, SPE Party, Guarantor, Manager (if Manager is an Affiliate of Borrower), and to Borrower’s knowledge, after having made reasonable inquiry each Person owning a direct or indirect interest in (other than in any entity or company whose shares or securities are listed on a national securities exchange) Borrower, SPE Party, Guarantor and Manager (if Manager is an Affiliate of Borrower): (i) is not currently identified on the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control (currently is accessible through the internet website at www.treas.gov/ofac/t11sdn.pdf) or any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any legal requirements (or if such list does not exist, the similar list then being maintained by the United States), including trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States; (ii) is not a Person subject to any trade restriction, trade embargo, economic sanction, or other prohibition under federal law, including the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq ., and any executive orders or regulations promulgated thereunder; and (iii) is not in violation of Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism and the Uniting and Strengthening America by Providing Appropriate Tools Required in Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) ((i), (ii) and (iii), collectively, the “ Patriot Act ”), with the result that (A) the investment in Borrower, SPE Party, Guarantor or Manager (if Manager is an Affiliate of Borrower), as applicable (whether directly or indirectly), is prohibited by law, or (B) the Loan is in violation of law.

 

  (m) Conduct of Business . Borrower possesses all permits, franchises and licenses and all rights to all trademarks, trade names, patents and fictitious names, if any, necessary to enable Borrower to conduct the business(es) in which Borrower is now engaged in compliance with applicable law.

 

  (n) Solvency . None of the transactions contemplated by the Loan will be or have been made with an actual intent to hinder, delay or defraud any present or future creditors of Borrower, and Borrower, on the Effective Date, will have received fair and reasonably equivalent value in good faith for the grant of the liens or security interests effected by the Loan Documents. On the Effective Date, Borrower will be solvent and will not be rendered insolvent by the transactions contemplated by the Loan Documents. Borrower is able to pay its debts as they become due.

 

  (o) Not a Foreign Person . Borrower is not a “foreign person” within the meaning of § 1445(f)(3) of the Internal Revenue Code of 1986, as amended from time to time or any successor statute.

 

  (p) Permitted Encumbrances . None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the reasonably intended benefits of the security intended to be provided by this Agreement, the Mortgage, the Note and the other Loan Documents, materially and adversely affects the value or marketability of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

 

  (q) Intentionally omitted .

 

  (r) Federal Reserve Regulations . No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by legal requirements affecting Borrower or the Property or any part thereof or by the terms and conditions of this Agreement, the Mortgage, the Note or the other Loan Documents.

 

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  (s) Investment Company Act . Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

 

  (t) Bank Holding Company . Borrower is not a “bank holding company” or a direct or indirect subsidiary of a “bank holding company” as defined in the Bank Holding Company Act of 1956, as amended, and Regulation Y thereunder of the Board of Governors of the Federal Reserve System.

 

  (u) Intentionally omitted .

 

  (v) REA Representations . Except as disclosed on third party estoppels obtained on or prior to the date hereof, (a) each REA is in full force and effect, (b) neither Borrower nor any other party to any REA is in default of a material obligation thereunder, (c) there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default of a material obligation thereunder and (d) except as set forth on Schedule 5.1(v) attached hereto, no REA has been modified, amended or supplemented.

 

  (w) Guarantor Representations . Borrower hereby represents and warrants that, as of the Effective Date and (except for the representations set forth in Sections 5.1(d) and (g)  hereof) continuing thereafter for the term of the Loan, the representations and warranties set forth in subsections 5.1(a) through (g), (l), (n) and (o) above are true and correct with respect to Guarantor, as the same are applicable to such party. Wherever the term “ Borrower ” is used in each of the foregoing subsections it shall be deemed to be “ Guarantor ”.

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Section 5.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement and in the other Loan Documents shall be deemed to have been relied upon by Lender on the date hereof notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

 

5.2 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPE STATUS .

Borrower hereby represents, warrants and covenants to Lender, with regard to Borrower, as follows:

 

  (a) Limited Purpose . The sole purpose to be conducted or promoted by Borrower since its organization is to engage in the following activities:

 

  (i) to acquire, own, hold, lease, operate, manage, maintain, develop and improve, the Property;

 

  (ii) to enter into and perform its obligations under the Loan Documents;

 

  (iii) to sell, transfer, service, convey, exchange, dispose of, pledge, assign, borrow money against, finance, refinance or otherwise deal with the Property to the extent permitted under the Loan Documents; and

 

  (iv) to engage in any lawful act or activity and to exercise any powers permitted to limited partnerships or limited liability companies, as applicable, formed under the laws of the State of Delaware that are related or incidental to and necessary, convenient or advisable for the accomplishment of the above mentioned purposes.

 

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  (b) Limitations on Debt, Actions . Notwithstanding anything to the contrary in the Loan Documents or in any other document governing the formation, management or operation of Borrower, Borrower shall not , while the Loan is outstanding:

 

  (i) guarantee any obligation of any Person, including any Affiliate, or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (ii) engage, directly or indirectly, in any business other than as required or permitted to be performed under this Section 5.2 ;

 

  (iii) incur, create or assume any indebtedness or liabilities other than, with respect to Borrower only, (A) the Loan, (B) obligations for which Lender is collecting an Impound, and (C) unsecured trade payables incurred in the ordinary course of its business that are related to the ownership and operation of the Property not to exceed two percent (2%) of the outstanding balance of the Loan, and which is not evidenced by a note and which must be paid within sixty (60) days and which are otherwise expressly permitted under the Loan Documents;

 

  (iv) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that Borrower may invest in those investments permitted under the Loan Documents;

 

  (v) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets outside the ordinary course of Borrower’s business;

 

  (vi) buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities);

 

  (vii) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity other than, with respect to SPE Party, its ownership interest in Borrower;

 

  (viii) own any asset or property other than the Property and incidental personal or intangible property necessary for the ownership or operation of the Property or, with respect to SPE Party, its ownership interest in Borrower; or

 

  (ix) take any Material Action without the unanimous written consent of all partners or members of Borrower or SPE Party, as applicable, including any Independent Managers of Holdco.

 

  (c) Separateness Covenants . In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate, Borrower represents and warrants that in the conduct of its operations since its organization it has and will continue to observe the following covenants (collectively, the “ Separateness Provisions ”):

 

  (i) maintain books and records and bank accounts separate from those of any other Person;

 

  (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets;

 

  (iii) comply with all organizational formalities necessary to maintain its separate existence;

 

  (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;

 

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  (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that Borrower’s assets may be included in a consolidated financial statement of its Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents;

 

  (vi) prepare and file its own tax returns separate from those of any Person to the extent required by applicable law, and pay any taxes required to be paid by applicable law;

 

  (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates;

 

  (viii) not enter into any transaction with any Affiliate, other than that certain Agreement with TRT NOIP CEVA Lease Holdco LLC, with respect to rent payments, except on an arm’s-length basis on terms which are intrinsically fair and substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;

 

  (ix) conduct business in its own name, and, to the extent Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name;

 

  (x) not commingle its assets or funds with those of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (xi) not assume, guarantee or pay the debts or obligations of any other Person, except as contemplated by the Loan Documents with respect to other Borrowers;

 

  (xii) correct any known misunderstanding as to its separate identity;

 

  (xiii) not permit any Affiliate to guarantee or pay its obligations (other than as set forth in the Loan Documents with respect to (x) other Borrowers and (y) the Guaranty and the Hazardous Materials Indemnity Agreement);

 

  (xiv) not make loans or advances to any other Person;

 

  (xv) pay its liabilities and expenses out of and to the extent of its own funds;

 

  (xvi) intentionally omitted;

 

  (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Property after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to Borrower; and

 

  (xviii) cause the managers, officers, employees, agents and other representatives of Borrower to act at all times with respect to Borrower consistently and in furtherance of the foregoing and in the best interests of Borrower.

Failure of Borrower to comply with any of the covenants contained in Sections 5.2(a), (b) or (c)  above or any other covenants contained in this Agreement shall not affect the status of Borrower as a separate legal entity.

 

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  (d) SPE Covenants in Borrower Organizational Documents . Borrower covenants and agrees to incorporate the provisions contained in this Section 5.2 into Borrower’s and SPE Party’s organizational documents and Borrower and SPE Party agree not to amend, modify or otherwise change its organizational documents with respect to the provisions of this Section 5.2 without the prior written consent of the Lender and the confirmation from the Rating Agencies that such amendment, modification or change will not result in a downgrading or qualification of the respective rating.

 

  (e) SPE Party . If Borrower is a limited partnership, each general partner of Borrower shall be a limited liability company, whose sole asset is its interest in Borrower, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above (“ GP SPE Party ”), modified to allow such SPE Party to act solely as a general partner of Borrower and to engage in no other business or activity. Such SPE Party shall at all times (A) continue to own no less than a 0.5% direct equity ownership interest in Borrower, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a) - (c)  above and this clause (e) , and (C) will cause Borrower to comply with the provisions of this Section 5.2 .

 

  (f) Intermediate Holdco . Each Intermediate Holdco shall be a limited liability company, whose sole asset is its direct or indirect interest in Borrower or GP SPE Party, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above, modified to allow such Intermediate Holdco to act solely as a direct or indirect equity owner of Borrower or GP SPE Party and to engage in no other business or activity. Such Intermediate Holdco shall at all times (A) continue to own no less than 100% direct or indirect equity ownership interest in any Borrower or GP SPE Party that is a limited liability company and 99% direct interest as a limited partner in any Borrower that is a limited partnership, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a) - (c)  above, and (C) will cause its subsidiaries to comply with the provisions of this Section 5.2 .

 

  (g) Holdco . Holdco shall be a limited liability company, whose sole asset is its direct or indirect interest in Borrower, SPE Party and Intermediate Holdco, with provisions in its organizational documents limiting its purpose, authority and activities to those set forth in clauses (a) - (c) above, modified to allow such Holdco to act solely as a direct or indirect equity owner of Borrower, GP SPE Party and Intermediate Holdco and to engage in no other business or activity. Such Holdco shall at all times (A) continue to own no less than 100% direct or indirect equity ownership interest in each Borrower, GP SPE Party and Intermediate Holdco, (B) comply with each of the applicable covenants, terms and provisions set forth in clauses (a) - (c)  above, and (C) will cause its subsidiaries to comply with the provisions of this Section 5.2 .

 

  (h)

Additional Requirements Applicable to each Borrower that is a Limited Liability Company, GP SPE Party and Intermediate Holdco . The limited liability company agreement (the “ Non-Holdco LLC Agreement ”) of each Borrower that is a limited liability company, GP SPE Party and Intermediate Holdco (the “ Non-Holdco ”) shall provide that (i) upon the occurrence of any event that causes the last remaining member of Non-Holdco (“ Non-Holdco Member ”) to cease to be the member of Non-Holdco (other than (A) upon an assignment by Non-Holdco Member of all of its limited liability company interest in Non-Holdco and the admission of the transferee in accordance with the Loan Documents and the Non-Holdco LLC Agreement or (B) the resignation of Non-Holdco Member and the admission of an additional member of Non-Holdco in accordance with the terms of the Loan Documents and the Non-Holdco LLC Agreement), a springing member, which shall be a Delaware corporation, shall, without any action of any other Person and simultaneously with the Non-Holdco Member ceasing to be the member of Non-Holdco automatically be admitted to Non-Holdco as a member with a zero percent (0%) economic interest (“ Corporate Special Member ”) and shall continue Non-Holdco without dissolution and (ii) Corporate Special Member may not resign from Non-Holdco or transfer its rights as Corporate Special Member unless (A) a successor special member has been admitted to Non-Holdco as a Corporate Special Member in accordance with requirements of Delaware law. The Non-Holdco

 

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LLC Agreement shall further provide that (i) Corporate Special Member shall automatically cease to be a member of Non-Holdco upon the admission to Non-Holdco of the first substitute member, (ii) Corporate Special Member shall be a member of Non-Holdco that has no interest in the profits, losses and capital of Non-Holdco and has no right to receive any distributions of the assets of Non-Holdco, (iii) pursuant to Section 18-301 of the Act, Corporate Special Member shall not be required to make any capital contributions to Non-Holdco and shall not receive a limited liability company interest in Non-Holdco, (iv) Corporate Special Member, in its capacity as Corporate Special Member, may not bind Non-Holdco and (v) except as required by any mandatory provision of the Act, Corporate Special Member shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Non-Holdco including, without limitation, the merger, consolidation or conversion of Non-Holdco. In order to implement the admission to Non-Holdco of Corporate Special Member, Corporate Special Member shall execute a counterpart to the Non-Holdco LLC Agreement. Prior to its admission to Non-Holdco as Corporate Special Member, Corporate Special Member shall not be a member of Non-Holdco.

 

  (i) Non-Consolidation Opinion . Borrower shall provide a bankruptcy non-consolidation opinion (“ Non-Consolidation Opinion ”) with respect to Borrower, its equity owners, Guarantor and such other parties as Lender may reasonably require, prepared by counsel and in form and substance as approved by Lender. All of the facts stated and all of the assumptions made in the Non-Consolidation Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects. Borrower has complied with and will comply and will cause the compliance with all of the assumptions made with respect to Borrower in the Non-Consolidation Opinion.

 

  (j) Independent Manager . As long as any obligation under the Loan is outstanding, Holdco at all times shall have at least two (2) Independent Managers (defined below). The organizational documents of Borrower, GP SPE Party, Intermediate Holdco and Holdco shall provide that (I) the board of managers or other governing body of Borrower, GP SPE Party, Intermediate Holdco or Holdco, as applicable, and the constituent members of Borrower and/or SPE Party, Intermediate Holdco or Holdco (the “ Constituent Members ”) shall not take any Material Action, unless at the time of such action there shall be at least two (2) Independent Managers engaged by Holdco as provided by the terms hereof and the organizational documents of Holdco; (II) any resignation, removal or replacement of any Independent Managers shall not be effective without two (2) Business Days’ prior written notice to Lender and the Rating Agencies accompanied by evidence that the replacement Independent Managers satisfies the applicable terms and conditions hereof and of the applicable organizational documents; (III) to the fullest extent permitted by applicable law, including Section 18-1101(c) of the Act, and notwithstanding any duty otherwise existing at law or in equity, the Independent Managers shall consider only the interests of the Constituent Members and Borrower, any GP SPE Party, Intermediate Holdco and Holdco, depending on which company is subject to the Material Action (including such entities’ respective creditors) in acting or otherwise voting on the Material Action (which such fiduciary duties to the Constituent Members, in each case, shall be deemed to apply solely to the extent of their respective economic interests in Borrower, GP SPE Party, Intermediate Holdco or Holdco (as applicable) exclusive of (x) all other interests (including, without limitation, all other interests of the Constituent Members), (y) the interests of other Affiliates of the Constituent Members, Borrower, GP SPE Party, Intermediate Holdco and Holdco and (z) the interests of any group of Affiliates of which the Constituent Members, Borrower, GP SPE Party, Intermediate Holdco and Holdco is a part)); (IV) other than as provided in subsection (III) above, the Independent Managers shall not have any fiduciary duties to any Constituent Members, any managers of Borrower, GP SPE Party, Intermediate Holdco or Holdco or any other Person; (V) the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing under applicable law; and (VI) to the fullest extent permitted by applicable law, including Section 18-1101(e) of the Act, an Independent Manager shall not be liable to Borrower, GP SPE Party, Intermediate Holdco, Holdco, or any Constituent Member or any other Person for breach of contract or breach of duties (including fiduciary duties), unless the Independent Manager acted in bad faith or engaged in willful misconduct.

 

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For purposes of this paragraph, a “special purpose entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of this Section 5.2.

 

  (k) Additional Requirements Applicable to Holdco . The limited liability company agreement of Holdco (the “ LLC Agreement ”) shall provide that (i) upon the occurrence of any event that causes the last remaining member of Holdco (“ Member ”) to cease to be the member of Holdco (other than (A) upon an assignment by Member of all of its limited liability company interest in Holdco and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement or (B) the resignation of Member and the admission of an additional member of Holdco in accordance with the terms of the Loan Documents and the LLC Agreement), any Person acting as Independent Manager of Holdco shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Holdco automatically be admitted to Holdco as a member with a zero percent (0%) economic interest (“ Special Member ”) and shall continue Holdco without dissolution and (ii) Special Member may not resign from Holdco or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Holdco as a Special Member in accordance with requirements of Delaware law and (B) after giving effect to such resignation or transfer, there remains at least two (2) Independent Managers of Holdco. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Holdco upon the admission to Holdco of the first substitute member, (ii) Special Member shall be a member of Holdco that has no interest in the profits, losses and capital of Holdco and has no right to receive any distributions of the assets of Holdco, (iii) pursuant to Section 18-301 of the Act, Special Member shall not be required to make any capital contributions to Holdco and shall not receive a limited liability company interest in Holdco, (iv) Special Member, in its capacity as Special Member, may not bind Holdco and (v) except as required by any mandatory provision of the Act, Special Member in its capacity as a Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Holdco including, without limitation, the merger, consolidation or conversion of Borrower or SPE Party; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Manager, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Holdco of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Holdco as Special Member, Special Member shall not be a member of Holdco, but Special Member may serve as an Independent Manager of Holdco.

 

  (l)

Additional Requirements Applicable to Limited Liability Companies . The limited liability company agreement of any limited liability company that is required hereby to comply with this Section 5.2 shall further provide, that upon the occurrence of any event that causes the Member or Non-Holdco Member to cease to be a member of such limited liability company to the fullest extent permitted by law, the personal representative of member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member or Non-Holdco Member in such limited liability company agree in writing (i) to continue such limited liability company and (ii) to an admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company effective as of the occurrence of the event that terminated the continued membership of Member or Non-Holdco Member in such limited liability company. Any action initiated by or brought against Member, Non-Holdco Member, Corporate Special Member or Special Member under any Creditors Rights Laws shall not cause Member, Non-Holdco Member, Corporate Special Member or Special Member to cease to be a member of such limited liability company and upon the occurrence of such an event, the business of such limited liability company shall continue without dissolution. The limited liability company agreement of such limited liability company shall provide that each of Member, Non-Holdco Member, Corporate Special Member and Special Member waives any right it might have to agree in writing to dissolve such limited liability company upon the occurrence of any action initiated by or brought against Member, Non-Holdco Member, Corporate Special Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member, Non-Holdco Member, Corporate Special Member or Special Member

 

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to cease to be a member of such limited liability company. For purposes of this subsection 5.2(h), “ Creditors Rights Laws ” shall mean any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

 

  (m) Compliance Certificates . Not later than ninety (90) days after and as of the end of each fiscal year and at any other time upon request from Lender, Borrower shall provide an Officer’s Certificate certifying as to Borrower’s continued compliance with the terms of this Section 5.2 and the terms of the Cash Management Agreement. Additionally, Borrower shall provide Lender with such other evidence of Borrower’s compliance with this Section 5.2 and the terms of the Cash Management Agreement as Lender may reasonably request from time to time.

 

  (n) Past Separateness . Each of iStar CTL Sunset Hills - Reston LLC (the “ Reston VA Borrower ”) (and Northrop VA Borrower (in the event the Earn-Out Advance shall have been made) hereby represents that, from the date of its respective formation on April 10, 2003 (in the case of Northrop VA Borrower), and on April 14, 2008 (in the case of Reston VA Borrower), through the date hereof (in the case of Reston VA Borrower) and the Earn-Out Disbursement Date (with respect to Northrop VA Borrower):

 

  (i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “ Related Party ” and collectively, the “ Related Parties ”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;

 

  (ii) has paid all of its debts and liabilities from its assets;

 

  (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;

 

  (iv) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person, except in accordance with principals of consolidation in conformity with generally accepted accounting principals;

 

  (v) has not had its assets listed as assets on the financial statement of any other Person;

 

  (vi) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law) and, if it is a corporation, has not filed a consolidated federal income tax return with any other Person;

 

  (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party);

 

  (viii) has corrected any known misunderstanding regarding its status as a separate entity;

 

  (ix) has conducted all of its business and held all of its assets in its own name;

 

  (x) has not identified itself or any of its affiliates as a division or part of the other;

 

  (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, to the extent necessary to correct any known misunderstanding regarding its status as a separate entity;

 

  (xii) has not commingled its assets with those of any other Person and has held all of its assets in its own name;

 

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  (xiii) has not guaranteed or become obligated for the debts of any other Person, except with respect to that certain First Guaranty and Suretyship Agreement dated as of April 28, 2008 and that certain Second Guaranty and Suretyship Agreement dated as of April 28, 2008, in each case guaranteeing obligations of iStar CTL Finance LLC, a Delaware limited liability company (the “ Subsidiary ”) under that certain Loan Agreement dated as of April 28, 2008, between the Subsidiary, as borrower, and General Electric Capital Corporation, as lender (the “ GE Loan Agreement ”), which guarantees are no longer outstanding, or as of the date hereof will not be, outstanding;

 

  (xiv) has not held itself out as being responsible for the debts or obligations of any other Person;

 

  (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party;

 

  (xvi) has not pledged its assets to secure the obligations of any other Person, except with respect to guaranteeing obligations of the Subsidiary under the GE Loan Agreement, which guarantees are no longer, or as of the date hereof will not be, outstanding, and no such pledge remains, or as of the date hereof will be, outstanding;

 

  (xvii) has maintained adequate capital in light of its contemplated business operations;

 

  (xviii) has maintained a sufficient number of employees, if any, in light of its contemplated business operations and has paid the salaries of its own employees, if any, from its own funds;

 

  (xix) has not owned any subsidiary or any equity interest in any other entity, except for [its limited liability company interests in the Subsidiary;

 

  (xx) has not incurred any indebtedness except indebtedness incurred pursuant to, or permitted under, the GE Loan Agreement that is no longer, or as of the date hereof, will not be, outstanding;

 

  (xxi) has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged or guarantees incurred pursuant to, or permitted under, the GE Loan Agreement that is no longer, or as of the date here, will not be, outstanding; and

 

  (xxii) none of the tenants holding leasehold interests with respect to the Property are affiliated with either the Northrop VA Borrower or Reston VA Borrower.

 

5.3 Representations; Recycled Entities .

Reston VA Borrower (and Northrop VA Borrower in the event the Earn-Out Advance shall have been made) hereby represents that it:

 

  (a) is and always has been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business;

 

  (b) has no judgments or liens of any nature against it except for tax liens not yet due and liens created or imposed pursuant to or permitted under the GE Loan Agreement;

 

  (c) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate;

 

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  (d) is not involved in any dispute with any taxing authority;

 

  (e) has paid all taxes which it owes;

 

  (f) other than its limited liability company interest in the Subsidiary, has never owned any real property other than the property that is the subject of the current transaction and personal property necessary or incidental to its ownership or operation of the applicable Individual Property and has never engaged in any business other than the ownership and operation of the applicable Individual Property;

 

  (g) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full, reversed or otherwise fully resolved, which in either case would reasonably be expected to have a Material Adverse Effect;

 

  (h) has provided Lender with financial statements relating to the Reston VA Borrower and the Northrop VA Borrower that are required under this Agreement; and

 

  (i) has no material contingent or actual obligations not related to the Property except indebtedness incurred pursuant to, or permitted under, the GE Loan Agreement.

ARTICLE 6. HAZARDOUS MATERIALS

 

6.1 HAZARDOUS MATERIALS INDEMNITY AGREEMENT .

Simultaneously herewith, Borrower and Guarantor have executed and delivered to Lender the Hazardous Materials Indemnity Agreement, which Hazardous Materials Indemnity Agreement is not secured by the Mortgage.

ARTICLE 7. COVENANTS OF BORROWER

 

7.1 COSTS AND EXPENSES .

Borrower shall, within ten (10) Business Days of demand, pay Lender all reasonable, out-of-pocket third party costs and expenses incurred by Lender in connection with: (a) the preparation of this Agreement and all other Loan Documents contemplated hereby; (b) any modifications and amendments, if any, of this Agreement or any of the other Loan Documents; (c) the processing of any Borrower requests made hereunder and under any of the other Loan Documents; (d) the enforcement or satisfaction by Lender of any of Borrower’s obligations under this Agreement and the other Loan Documents; or (e) otherwise protecting Lender’s interests under this Agreement and any other Loan Document, including, without limitation, in connection with any “work-out” of the Loan or any bankruptcy, insolvency, receivership, reorganization, rehabilitation, liquidation or other similar proceeding in respect of any Obligor or an assignment by any Obligor for the benefit of its creditors. For all purposes of this Agreement, Lender’s reasonable costs and expenses as described above (collectively, “ Costs and Expenses ”) shall also include, without limitation, as allocable to the Loan, all appraisal fees, cost engineering and inspection fees, reasonable third party legal fees and expenses, third party accounting fees, fees for the disbursement of any Impounds as set forth in Section 4.5 hereof, environmental and other consultant fees, auditor fees, and the cost to Lender of any title insurance premiums and title company charges (including for down dates, abstracts, tax certificates, title insurance endorsements required by Lender, and UCC financing statements, tax lien and litigation searches), surveys, recording, reconveyance and notary fees, any transfer and mortgage taxes, any rating agency fees and expenses for the initial securitization of the Loan, and any loan servicing and special servicing fees and expenses (including, without limitation, any “work-out” and/or liquidation fees), any interest payable to any servicer, any special servicer or any trustee pursuant to a trust and servicing agreement in respect of advances made by any of the foregoing; all compensation payable to any special servicer in connection with servicing the Loan when it is a specially serviced loan or its administration of any of the Property foreclosed upon; and, except for the regular monthly fee payable to the servicer, any other cost, fee or expense of the trust fund administering the Loan (including, but not

 

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limited to, reimbursements to the trustee thereof, the servicer, any special servicer, any certificate administrator thereunder and related Persons of each of the foregoing and indemnification to Persons entitled thereto pursuant to any trust and servicing agreement governing the Loan, taxes related to the Loan or the Property payable from the assets of the applicable trust fund, tax related expenses (other than the recurring expenses of filing or furnishing annual or other tax or information returns, reports or schedules, which will be paid by any certificate administrator) and the cost of various opinions of counsel required to be obtained in connection with servicing the Loan and administration of the trust fund). Borrower recognizes and agrees that formal written appraisals of the Property by a licensed independent appraiser may be required by Lender’s internal procedures and/or federal regulatory reporting requirements on an annual and/or specialized basis and that Lender may, at its option, require inspection of the Property by an independent supervising architect and/or cost engineering specialist at least semiannually. If any of the services described above are provided by an employee of Lender, Lender’s costs and expenses for such services shall be calculated in accordance with Lender’s standard charge for such services. Notwithstanding the foregoing, Borrower shall not be required to pay for more than one appraisal (or for the aforementioned architect and cost engineering specialist more than once) during the term of the Loan unless a Default occurs and is continuing or as otherwise required by law. In addition, if Borrower is undertaking a Restoration or is performing Work that requires the obtaining of a building permit, then Borrower shall pay the reasonable out-of-pocket costs of architect’s, engineers and other consultants retained by Lender to review the performance of such Restoration or Work. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, whenever any term or provision in any Loan Document provides that Borrower (or Guarantor) shall pay Lender’s costs or expenses, such term or provision shall be deemed to mean that Borrower (or Guarantor) shall be responsible to pay only those third party out of pocket costs and expenses actually incurred by Lender.

 

7.2 ERISA COMPLIANCE .

Borrower shall at all times comply with the provisions of ERISA with respect to any retirement or other employee benefit plan to which it is a party as employer, and as soon as possible after Borrower knows, or has reason to know, that any Reportable Event (as defined in ERISA) with respect to any such plan of Borrower has occurred, it shall furnish to Lender a written statement setting forth details as to such Reportable Event and the action, if any, which Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event furnished to the Pension Benefit Guaranty Corporation.

 

7.3 MANAGEMENT OF PROPERTY; BROKERAGE AGREEMENTS; OTHER AGREEMENTS .

 

  (a) The Property shall at all times be managed by a Qualified Manager pursuant to a management agreement reasonably approved by Lender and subordinated and assigned to Lender (unless a Property is being managed by a tenant other than pursuant to a separate management agreement). Without the prior written consent of Lender, Borrower shall not enter into any other third party property management contracts. Each such contract shall be expressly subordinated to the Loan on terms and conditions reasonably acceptable to Lender. Borrower shall engage leasing brokers listing contracts only on market terms, and all such contracts shall be expressly subordinated to the Loan and shall be entered into using a form that has been reasonably approved by Lender in writing.

 

  (b) Borrower shall not enter into or amend, modify or terminate any Material Contract without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.

 

  (c) In the event of the transfer of the management of the Property to an Affiliated Manager, such transfer shall be conditioned upon delivery to Lender of a new Non-Consolidation Opinion addressing such transfer.

 

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7.4 COVENANTS - LEASES; MAJOR LEASES .

 

  (a) Leases . Borrower shall, at Borrower’s sole cost and expense:

 

  (i) perform in all material respects all obligations of the landlord under the Leases and use reasonable efforts to enforce performance by the tenants of all obligations of the tenants under the Leases;

 

  (ii) use reasonable efforts to keep the Property leased at all times to tenants Borrower reasonably and in good faith believes are creditworthy, at rents not less than the fair market rental value (including, but not limited to, free or discounted rents to the extent the market so requires); and

 

  (iii) promptly deliver to Lender upon execution, a copy of each Lease and all amendments thereto and waivers thereof; and

 

  (iv) subject to the rights and obligations set forth under the respective Leases, shall assign to Lender as additional collateral for the Loan any and all security deposits and letters of credit delivered by any tenant to Borrower.

Unless consented to in writing by Lender or otherwise permitted under any other provision of the Loan Documents (or unless provided under any existing Leases), Borrower shall not:

 

  (i) grant any tenant under any Lease any option, right of first refusal or other right to purchase all or any portion of the Property under any circumstances (provided, however, if the right to purchase is for an amount in excess of the Release Price of the Property, Lender’s consent right to any of the foregoing shall not be unreasonably withheld);

 

  (ii) grant any tenant under any Lease any right to prepay rent more than one (1) month in advance;

 

  (iii) except upon Lender’s request, execute any assignment of landlord’s interest in any Lease;

 

  (iv) collect rent or other sums due under any Lease in advance, other than to collect rent one (1) month in advance of the time when it becomes due; or

 

  (v) enter into any Lease which (aa) is not on fair market terms (which terms may include free or discounted rent and tenant allowances to the extent the market so requires); (bb) does not contain a provision requiring the tenant to execute and deliver to the landlord an estoppel certificate in form and substance reasonably satisfactory to the landlord promptly upon the landlord’s request; or (cc) does not contain subordination, non-disturbance and attornment provisions (including the requirement to provide notice and cure to landlord’s lender in the event of a landlord default) reasonably satisfactory to Lender.

 

  (b) Major Leases . In addition to the requirements of subsection (a)  above, with respect to any Major Lease (as defined below), unless consented to in writing by Lender (which consent shall not be unreasonably withheld) or otherwise permitted under any other provision of the Loan Documents, Borrower shall not:

 

  (i) enter into any Major Lease;

 

  (ii) terminate (unless the tenant is in monetary default thereunder), modify or amend a Major Lease (including the term thereof); or

 

  (iii) release or discharge the tenant or any guarantor under any Major Lease from any material obligation thereunder.

The term “ Major Lease ,” as used herein, shall mean any Lease, which is, at any time, a Lease of more than twenty-five percent (25%) of the total rentable area of any Individual Property, as reasonably determined by Lender. Borrower’s obligations with respect to Major Leases shall be governed by the provisions of this Section 7.4 .

 

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  (c) Lease Payment Event . Borrower shall deposit with Lender any sums received by Borrower in consideration of any termination, modification or amendment, or settlement (other than a settlement for the payment of past due rent) of any Lease or any release or discharge of any tenant under any Lease from any obligation thereunder (a “ Lease Payment Event ”) and any such sums received by Borrower shall be held in trust by Borrower for the benefit of Lender. Any such sums shall be promptly paid to Lender for deposit by Lender into the General TI Impound or an impound created specifically for the re-tenanting of such space. Provided no Default is continuing, any such amounts so deposited shall be returned to Borrower upon the re-leasing of such terminated space and from time to time upon incurrence of associated Leasing Costs.

 

  (d) Material Default . Borrower shall, at Borrower’s sole cost and expense, give Lender prompt written notice of any default by landlord or tenant under any Major Lease of which Borrower has knowledge and which has a Material Adverse Effect.

 

  (e) Lender Consent Required . Any Lease that does not satisfy the requirements of this Section 7.4 shall, subject to subsection (f)  below, require the prior written consent of Lender, such consent not to be unreasonably withheld. Notwithstanding the foregoing, any Major Lease shall, subject to subsection (f)  below, require the prior written consent of Lender. Any Lease that is not a Major Lease which satisfies the requirements of Section 7.4(a) shall not require Lender’s written consent.

 

  (f) Request for Approval; Failure to Deny Request . Lender’s failure to deny any written request by Borrower for Lender’s consent required under this Section 7.4 or to request additional information in response to such request within ten (10) Business Days after Lender’s receipt of such request (and all lease documents and information reasonably related thereto, “ Lease Documents ”) shall be deemed to constitute Lender’s consent to such request and Lease Documents; provided that said written request to Lender conspicuously state in 12 point or larger bold type “PURSUANT TO SECTION 7.4(f) OF THE LOAN AGREEMENT, BORROWER’S REQUEST FOR APPROVAL OF THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT DECLINE APPROVAL IN WRITING OR REQUEST ADDITIONAL INFORMATION REASONABLY RELATED THERETO IN WRITING WITHIN TEN (10) BUSINESS DAYS OF THIS LETTER, THE ENCLOSED LEASE AND RELATED INFORMATION AS DESCRIBED HEREIN.” In the event that Lender requests additional information to complete its review within the initial ten (10) Business Day period after Borrower’s written request for approval, Lender’s failure to deny such request by Borrower within five (5) Business Days after receipt of all of the information Lender has requested to complete its review shall be deemed to constitute Lender’s consent to such request; provided that all of the information requested by Lender is delivered and such information conspicuously states in 12 point or larger bold type “PURSUANT TO SECTION 7.4(f) OF THE LOAN AGREEMENT, BORROWER’S REQUEST FOR APPROVAL OF THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT DECLINE APPROVAL IN WRITING OR REQUEST ADDITIONAL INFORMATION REASONABLY RELATED THERETO IN WRITING WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS ADDITIONAL INFORMATION AS DESCRIBED HEREIN.”

 

  (g)

Security Deposits . As additional security for the Loan, Borrower has assigned to Lender all of Borrower’s right, title and interest in and to any security deposits or letters of credit delivered to Borrower by tenants at the Property as security for such tenants’ obligations under their respective Leases. Lender shall draw on any such letters of credit upon delivery to Lender of an Officer’s Certificate from Borrower specifying what conditions exist under the applicable Lease entitling the Borrower to draw on such letter of credit. Any letters of credit assigned to Lender and held by Lender pursuant to the terms hereof shall be held in accordance with the terms of the applicable Lease and all applicable laws. Lender shall return to Borrower any letters of credit held by Lender hereunder upon the expiration of the Lease applicable to such letter of credit (or sooner, if required by the terms of such Lease) or upon payment in full of the Loan, or upon the release of the

 

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applicable Property pursuant to the terms hereof (and Lender shall execute and deliver any and all assignment documents required or requested by the issuing bank in order to assign any such letters of credit to Borrower or any other entity requested by Borrower). Within ten (10) Business Days of the date hereof, Borrower shall deliver to Lender executed documentation, in form and substance reasonably acceptable to Lender, from the respective issuers of the letters of credit evidencing the assignment of such letters of credit from Borrower to Lender (such obligation, collectively the “ Letter of Credit Assignment ”).

 

7.5 INTENTIONALLY DELETED .

 

7.6 RIGHT OF SUBORDINATION .

Lender may at any time and from time to time by specific written instrument intended for such purpose, unilaterally subordinate the lien of the Mortgage to any Lease, without joinder or consent of, or notice to, Borrower, any tenant or any other Person. No subordination referred to in this Section 7.6 shall constitute a subordination to any lien or other encumbrance, whenever arising, or improve the right of any junior lienholder. Nothing herein shall be construed as subordinating the Mortgage to any Lease.

 

7.7 FURTHER ASSURANCES .

Upon Lender’s reasonable request and at Borrower’s sole cost and expense, Borrower shall execute, acknowledge and deliver any other instruments and perform and/or consent to any other acts necessary, desirable or proper, as reasonably determined by Lender, to carry out the purposes of this Agreement and the other Loan Documents or to perfect and preserve any security interests or liens created by the Loan Documents; provided, however, that no such instruments shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. The foregoing covenant includes, without limitation, Borrower’s consent to the revision of any Loan Document in order to correct any scrivener, clerical or similar errors or to modify any term, condition or provision thereof in order to satisfy the provisions of this Section 7.7 .

 

7.8 ASSIGNMENT .

Without the prior written consent of Lender, Borrower shall not (except as otherwise permitted under Articles 14 and 15 hereof) assign Borrower’s interest under any of the Loan Documents, or in any monies due or to become due thereunder, and any assignment without such consent shall be void.

 

7.9 EXISTENCE .

Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

 

7.10 COMPLIANCE WITH LAWS, ETC .

Borrower shall (a) comply in all material respects with all applicable laws, and all restrictive covenants of record affecting Borrower or the Property, performance, prospects, assets or operations of Borrower, and (b) seek to obtain as needed all permits necessary for its operations and maintain such in good standing.

 

7.11 LITIGATION .

Borrower shall promptly notify Lender in writing of any litigation pending or threatened in writing against Borrower (which is not covered by insurance) claiming damages in excess of Two Hundred and Fifty Thousand and No/100 Dollars ($250,000.00) and of all pending or threatened (in writing) litigation against Borrower if the aggregate damage claims against Borrower exceed One Million and No/100 Dollars ($1,000,000.00).

 

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7.12 MERGER, CONSOLIDATION, TRANSFER OF ASSETS .

Without limiting Borrower’s obligations under Section 5.2 , Article 14 and Article 15 of this Agreement, Borrower shall not: (a) merge or consolidate with any other entity; (b) make any substantial change in the nature of Borrower’s business or structure; (c) acquire all or substantially all of the assets of any other entity; or (d) sell, lease, assign, Transfer or otherwise dispose of a material part of Borrower’s assets, except in the ordinary course of Borrower’s business or as otherwise permitted hereunder (including under Section 7.4 and Article 15 hereof).

 

7.13 ACCOUNTING RECORDS .

Borrower shall maintain adequate books and records in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably approved by Lender. Borrower shall permit any representative of Lender, at any reasonable time and from time to time during business hours, upon reasonable advance written notice (but not more frequently than one time per calendar year unless a Default shall be continuing), to inspect, audit and examine such books and records and make copies of same.

 

7.14 PAYMENT OF TAXES AND CLAIMS .

Borrower shall pay (or cause to be paid) (a) all taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon (unless Lender is paying the same pursuant to the terms hereof or unless Borrower is contesting any such taxes, assessments or other governmental charges in good faith pursuant to Section 16.7 herein) and (b) except to the extent being contested in good faith by appropriate proceedings and for which appropriate reserves (which may be funds then held as Impounds, as determined in Lender’s reasonable discretion) have been established, all claims (including, without limitation, claims for labor, services, materials and supplies) for sums, which have become due and payable and which by law have or may become a lien or encumbrance, other than a judgment lien, upon any of Borrower’s properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto.

 

7.15 MAINTENANCE OF PROPERTY .

Borrower shall maintain (or cause to be maintained) in good repair, working order and condition in all material respects, excepting ordinary wear and tear, the Property and will make or cause to be made all appropriate repairs, renewals and replacements thereof.

 

7.16 QUALIFICATION, NAME; EXISTENCE .

Borrower shall qualify and remain qualified to do business in the jurisdiction in which the Property is located or in which the nature of its business requires it to be so qualified. Borrower will transact business solely in its own name. Borrower will not change its name, address or state of organization without giving prior written notice thereof to Lender. Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

 

7.17 ALTERATIONS .

Lender’s prior approval (which approval shall not be unreasonably withheld or delayed) shall be required in connection with any alterations to any Improvements (a) that would be reasonably expected to have a Material Adverse Effect, (b) the cost of which in the aggregate with all ongoing alterations is reasonably anticipated to exceed the Alteration Threshold or (c) that are structural in nature, except in each case for alterations or tenant improvements being made expressly pursuant to existing Leases entered into pursuant to Section 7.4 or existing as of the date hereof (and as such are deemed approved by Lender). If the total unpaid amounts incurred and to be incurred with respect to any alterations to the Improvements under

 

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subsection (b) above shall at any time exceed the Alteration Threshold (other than Improvements for which Borrower has deposited Impounds as required hereunder), Borrower shall, if required in writing by Lender, promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (i) cash, (ii) U.S. Obligations, (iii) other securities acceptable to Lender, or (iv) a completion bond acceptable to Lender. Such security shall be in an amount equal to the excess of the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements over the Alteration Threshold. In addition to Borrower’s obligation to post security if the alteration exceeds the Alteration Threshold, Borrower shall deliver to Lender title coverage reasonably acceptable to Lender to insure Lender for any mechanic’s liens filed in connection with such alteration to the extent such title coverage is available at a reasonable cost in the jurisdiction in which the Property is located. Any such security or excess funds shall be disbursed to Borrower to pay or reimburse Borrower for completed work related to such alterations, provided Borrower complies with the requirements for disbursements for work as set forth in Section 4.4.4(d) of Exhibit E (such work being performed in connection with such alterations being deemed “Work” in Section 4.4.4(d) of Exhibit E only for the purposes of disbursements pursuant to this Section 7.17 ). All such security or excess funds remaining after completion of the alteration shall be promptly returned to Borrower.

 

7.18 COMPLIANCE WITH PATRIOT ACT .

Borrower covenants and agrees that in the event Borrower receives any notice that Borrower, SPE Party, Guarantor, any property manager (if such property manager is an Affiliate of Borrower) (or any of their respective beneficial owners, affiliates or participants) or any Person that has an interest in the Property (including, without limitation, any tenant at the Property) become listed on any list promulgated under the Patriot Act or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall immediately notify Lender. At Lender’s option, it shall be a Default hereunder if Borrower, SPE Party or Guarantor becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering.

 

7.19 ACCESS TO PROPERTY .

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance written notice subject to the tenant’s rights under the applicable Lease.

 

7.20 NOTICE OF DEFAULT .

Borrower shall promptly advise Lender of any Material Adverse Effect or of the occurrence of any Default of which Borrower has knowledge.

 

7.21 COOPERATE IN LEGAL PROCEEDINGS .

Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the Note, the Mortgage or the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

 

7.22 PERFORMANCE BY BORROWER .

Borrower shall (a) in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement, the Mortgage, the Note and the other Loan Documents and (b) in a timely manner observe, perform and fulfill, in all material respects, its material obligations under any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications of changes thereto.

 

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7.23 ESTOPPEL CERTIFICATES .

 

  (a) Borrower Estoppel . After request by Lender, Borrower shall, within twenty (20) days of such request (but in any event, unless a Default is continuing, not more frequently than twice per calendar year), furnish Lender or any proposed assignee with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the terms of payment and maturity date of the Note, (v) the date installments of interest and/or principal were last paid, (vi) that, except as provided in such statement, no Default exists, (vii) that this Agreement, the Note, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification, (viii) to Borrower’s knowledge, whether any offsets or defenses exist against the obligations secured hereby and, if any are alleged to exist, a detailed description thereof, (ix) that all Leases are in full force and effect and have not been modified (or if modified, setting forth all modifications), (x) the date to which the Payments thereunder have been paid pursuant to the Leases, (xi) whether or not, to the best knowledge of Borrower, any of the lessees under the Leases are in default in any material respect under the Leases, and, if any of the lessees are in default in any material respect setting forth the specific nature of all such defaults, (xii) the amount of security deposits held by Borrower under each Lease and that such amounts are consistent with the amounts required under each Lease, and (xiii) as to any other matters reasonably requested by Lender and reasonably related to the Leases, the obligations created and evidenced hereby and by the Mortgage or the Property.

 

  (b) Borrower shall use commercially reasonable efforts to deliver to Lender, promptly upon request, (but in any event not more frequently than one time per calendar year), duly executed estoppel certificates from any one or more tenants as required by Lender attesting to such facts regarding the Lease as Lender may require, including, but not limited to, attestations that each Lease covered thereby is in full force and effect with no defaults thereunder on the part of any party, that no rent under such Leases have been paid more than one (1) month in advance, except as security, and that the tenant claims no defense or offset against the full and timely performance of its obligations under the Lease.

 

  (c) In connection with a Secondary Market Transaction in connection with the Loan (or any portion thereof or interest therein), at Lender’s request, Borrower shall provide an estoppel certificate to any investor or any prospective investor in such form, substance and details as Lender, such investor or prospective investor may reasonably require.

 

  (d) Borrower shall use commercially reasonable efforts to deliver to Lender, upon request, estoppel certificates from each party under any REA in form and substance reasonably acceptable to Lender.

 

  (e) On an annual basis, Lender shall promptly provide information reasonably requested by Borrower to assist with Borrower’s annual auditing, provided such information is not confidential and is readily available. Any such information shall be provided without representation or warranty and Borrower shall pay any reasonable third party costs of Lender associated therewith.

 

7.24 ADVISOR .

TROP shall at all times be operated by an experienced professional advisory firm (or have internal management similar to what an advisory firm provides) regularly engaged in the operation and advisement of real estate investment trusts similar in experience and expertise to TRT.

 

7.25 NO JOINT ASSESSMENT .

Borrower shall not consent to initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

 

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7.26 REA COVENANTS .

Borrower agrees that, without the prior consent of Lender, Borrower will not enter into any new REA or execute modifications to any existing REA if such new REA or such modifications will have a Material Adverse Effect. Borrower shall enforce, shall comply with, and shall use commercially reasonable efforts to cause each of the parties to each REA to comply with all of the terms and conditions contained in such REA.

 

7.27 DEFERRED MAINTENANCE .

Within one hundred eighty (180) days of the date hereof, Borrower shall complete the repairs and replacements as described on Exhibit E-1 attached hereto (the “ Deferred Maintenance ”). Notwithstanding the foregoing, for those items set forth on Exhibit E-1 and identified as “Tenant Responsibility”, Borrower shall not be required to complete the Deferred Maintenance itself, but shall be required to enforce the terms of the applicable Lease to cause the tenant under such Lease to perform such repairs as and when required pursuant to the terms of the applicable Lease.

 

7.28 Loan to Cost .

At all times while the Mezzanine Loan or any New Mezzanine Loan shall be in existence, the loan-to-cost ratio (calculated as the quotient of (i) the sum of (A) the outstanding principal balance of the Loan and (B) the outstanding principal balance of the Mezzanine Loan or the New Mezzanine Loan, as applicable, and (ii) the purchase price of all Properties) shall not exceed sixty-two percent (62%).

ARTICLE 8. FINANCIAL COVENANTS

 

8.1 STATEMENTS REQUIRED .

During the term of the Loan and while any portion of the Debt remains outstanding, unless Lender otherwise consents in writing or, if prior to a Securitization or during the continuance of a Default, requests on a more frequent basis, Borrower shall provide to Lender the following:

 

  (a) Annual Financial Statement . Within sixty (60) days of Lender’s written request therefor (but in no event earlier than sixty (60) days after the end of each fiscal year), an unaudited financial statement, signed and certified as true and correct by an authorized officer of Borrower showing all revenues and expenses and a balance sheet showing all assets and liabilities of Borrower relating to the Property for such fiscal year, provided, Borrower shall have a period of thirty (30) days from the delivery of such statements to provide any material adjustments to such statements. In addition, not later than one hundred twenty (120) days after and as of the end of each fiscal year, an audited operating statement and balance sheet audited by a “Big Four” accounting firm or any other independent accounting firm reasonably satisfactory to Lender, showing all revenues and expenses relating to the Property for such fiscal year;

 

  (b) Monthly and Quarterly Operating Statements . Not later than ten (10) days after request by Lender during the period prior to any sale of the Loan, and thereafter not later than sixty (60) days after and as of the end of each calendar quarter, an unaudited operating statement, signed and certified as true and correct by an authorized officer of Borrower, showing all revenues and expenses during the most recent month (for which such monthly statements are available) or quarter and year-to-date;

 

  (c) Intentionally Omitted .

 

  (d)

Annual Budget . Within ninety (90) days after the end of each fiscal year, an Annual Budget including a Capital Expenditures budget signed and dated by Borrower, and certified by Borrower

 

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to be a true, complete and correct copy of the Annual Budget adopted by Borrower for the applicable year; which, upon the occurrence and during the continuance of a Cash Trap Event Period shall be approved by Lender, which approval shall not be unreasonably withheld (such approved Annual Budget, an “ Approved Annual Budget ”). Until such new proposed budget is approved (if applicable), the prior existing Approved Annual Budget shall be used for the next calendar year, adjusted for customary increases of three percent (3%) per item.

 

  (e) Rent Roll . Not later than sixty (60) days after and as of the end of each calendar quarter (and together with the delivery of the quarterly statements set forth in 8.1(b)), a Rent Roll signed and dated by Borrower, provided, Borrower shall have a period of thirty (30) days from the delivery of such Rent Roll to provide any material adjustments to such Rent Roll;

 

  (f) Compliance Certificates . The Compliance Certificate described in Section 5.2(i) hereof;

 

  (g) Debt Yield . No later than sixty (60) days after the end of each quarter (and together with the delivery of the quarterly statements set forth in 8.1(b)), Borrower shall deliver to Lender an Officer’s Certificate setting forth Borrower’s calculation of the Debt Yield for the Loan, provided, Borrower shall have a period of thirty (30) days from the delivery of such statement to provide any material adjustments to such statement; and

 

  (h) Other Information . From time to time prior to a Securitization or during the continuance of a Default, upon Lender’s delivery to Borrower of at least ten (10) days’ prior written notice, such other information with regard to Borrower, principals of Borrower, any Guarantor or the Property, as Lender may reasonably request in writing.

 

8.2 FORM; WARRANTY .

Borrower agrees that all financial statements to be delivered to Lender pursuant to this Article 8 shall: (a) be complete and correct in all material respects; (b) present fairly the financial condition of the party; (c) disclose all liabilities that are required to be reflected or reserved against; and (d) be prepared in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably acceptable to Lender. By its execution of this Agreement, Borrower shall be deemed to warrant and represent that, as of the date of delivery of any such financial statement, there has been no change in financial condition which would have a Material Adverse Effect, nor have any assets or properties been sold, transferred, assigned, mortgaged, pledged or encumbered since the date of such financial statement which would have a Material Adverse Effect, except as disclosed by Borrower in a writing delivered to Lender. Borrower agrees that all rent rolls and other information to be delivered to Lender pursuant to this Article 8 shall not contain any misrepresentation or omission of a material fact.

 

8.3 CHARGE FOR LATE DELIVERY .

If any financial statement, leasing schedule or other items required to be delivered to Lender pursuant to this Article 8 is not timely delivered, following written notice from Lender to Borrower, and such failure continues after ten (10) days of such written notice from Lender, Borrower shall promptly pay to Lender, as a late charge, the sum of One Thousand and No/100 Dollars ($1,000) per item. In addition, Borrower shall promptly pay to Lender an additional late charge of Five Hundred and No/100 Dollars ($500.00) per item for each full month during which such item remains undelivered following written notice from Lender. Borrower acknowledges that Lender will incur additional expenses as a result of any such late deliveries, which expenses would be impracticable to quantify, and that Borrower’s payments under this Article 8 are a reasonable estimate of such expenses. Borrower acknowledges further that payment by Borrower of this late charge does not in any manner affect or otherwise impair or waive any rights and remedies Lender may have hereunder, under the Loan Documents or under applicable law for any Default.

 

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ARTICLE 9. DEFAULTS AND REMEDIES

 

9.1 DEFAULT .

For all purposes hereof, “ Default ” shall mean either an “ Optional Default ” (as defined below) or an “ Automatic Default ” (as defined below).

 

  (a) Optional Default . An “ Optional Default ” shall occur, at Lender’s option (exercised in its sole and absolute discretion), upon the occurrence of any of the following events:

 

  (i) Monetary . Borrower shall fail to (a) pay when due the P& I Payment Amount or sums which are payable on the Maturity Date, or (b) pay when due any other sums payable under the Note, this Agreement or any of the other Loan Documents and such failure continues after ten (10) days’ written notice of such failure from Lender to Borrower.

 

  (ii) Failure to Perform . Borrower shall fail to observe, perform or discharge any of Borrower’s obligations, covenants, conditions or agreements, other than Borrower’s payment obligations, under the Note, this Agreement or any of the other Loan Documents, and such failure shall remain uncured for forty-five (45) days after written notice thereof shall have been given to Borrower by Lender; provided, however, if any failure under this Section 9.1(a)(ii) shall be of such a nature that it cannot be cured or remedied within such forty-five (45) days, Borrower shall be entitled to a reasonable period of time to cure or remedy such failure (not to exceed one hundred twenty (120) days following the giving of such notice (subject to further extension by Lender, in Lender’s reasonable discretion)), provided Borrower commences the cure or remedy thereof within the forty-five (45) day period following the giving of notice and, thereafter, proceeds with diligence to complete such cure or remedy.

 

  (iii) Representations and Warranties . Any representation, warranty, certificate or other written statement (financial or otherwise) made or furnished by or, in the case of any financial statements of Borrower, on behalf of Borrower or Guarantor, to Lender under or in connection with any of the Loan Documents shall be false, incorrect, incomplete or misleading in any material respect when made or furnished.

 

  (iv) Intentionally Omitted .

 

  (v) Bankruptcy of Partners, Managing Member, Guarantors and Sponsor . The occurrence of an event specified in subsections (b)(i) or (ii) herein as to any general partner or managing member of Borrower (other than any SPE Party) or Guarantor.

 

  (b) Automatic Default . An “ Automatic Default ” shall occur automatically upon the occurrence of any of the following events:

 

  (i) Voluntary Bankruptcy, Insolvency, Dissolution . (aa) Borrower’s or SPE Party’s filing a petition for relief under the Bankruptcy Code, or under any other present or future state or federal law regarding bankruptcy, reorganization or other relief to debtors (collectively, “ Debtor Relief Law ”); or (bb) Borrower’s or SPE Party’s filing any pleading in any involuntary proceeding under the Bankruptcy Code or other Debtor Relief Law which admits the petition’s material allegations regarding Borrower’s or SPE Party’s insolvency; or (cc) Borrower’s or SPE Party’s making a general assignment for the benefit of creditors; or (dd) Borrower’s or SPE Party’s applying for, or the appointment of, a receiver, trustee, custodian or liquidator of Borrower, SPE Party or any of their property; or (ee) the filing by Borrower or SPE Party of a petition seeking the liquidation or dissolution of Borrower or SPE Party or the commencement of any other procedure to liquidate or dissolve Borrower or SPE Party.

 

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  (ii) Involuntary Bankruptcy . Borrower’s or SPE Party’s failure to effect a full dismissal of any involuntary petition under the Bankruptcy Code or other Debtor Relief Law that is filed against Borrower or SPE Party, prior to the earlier of the entry of any order granting relief sought in the involuntary petition or ninety (90) days after the date of filing of the petition.

 

9.2 ACCELERATION .

Upon the occurrence of an Optional Default, Lender may, at its option (exercised in its sole and absolute discretion), declare all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) immediately due and payable. Upon the occurrence of an Automatic Default, all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) shall automatically become immediately due and payable.

 

9.3 RIGHTS AND REMEDIES .

In addition to the other rights and remedies above and otherwise in this Agreement, at any time after a Default, Lender shall have all of the rights and remedies as set forth in the Mortgage, the other Loan Documents, under applicable law and in equity. All rights and remedies of Lender under this Agreement and the other Loan Documents are cumulative and are in addition to all rights and remedies provided by applicable law and in equity. Lender may enforce any such remedies or rights either successively or concurrently.

ARTICLE 10. NO PREPAYMENT - DEFEASANCE ONLY

Borrower acknowledges that any prepayment of the Loan will cause Lender to lose its interest rate yield on the Loan and will possibly require that Lender reinvest any such prepayment amount in loans of a lesser interest rate yield (including, without limitation, in debt obligations other than first mortgage loans on commercial properties). As a consequence, Borrower agrees as follows, as an integral part of the consideration for Lender’s making the Loan:

 

  10.1 No Voluntary Prepayment . Voluntary prepayment of the Loan is prohibited during the Prepayment Lockout Period. After the Prepayment Lockout Period, prepayment of the Loan is permitted in full only, and not in part. Subject to the foregoing, on and after the Open Period Start Date, Borrower may prepay the Loan without incurring any prepayment charge or premium.

 

  10.2 Prepayment Charge .

 

  (a)

Basic Charge . Except as provided in clause (c)  below and subject to Section 10.1 , if at any time prior to the Open Period Start Date prepayment of all or a portion of the principal amount of the Loan is tendered by Borrower, a purchaser at foreclosure or any other Person and accepted by Lender, whether such prepayment is voluntary, involuntary or made concurrently with or after a Default, such tender shall be deemed an attempt to circumvent the prohibition against prepayment set forth in the 10.1 above, and Borrower, such purchaser at foreclosure or other Person shall pay to Lender on the prepayment date (in addition to all other sums then due and owing to Lender under the Loan Documents) a prepayment charge equal to the greater of the following two amounts: (i) an amount equal to two percent (2%) of the amount prepaid; or (ii) an amount equal to (A) the amount, if any, by which the sum of the present values as of the prepayment date of all unpaid principal and interest payments required under the Loan, calculated by discounting such payments from their respective Due Dates (or, with respect to the payment required on the Maturity Date, from the Maturity Date) back to the prepayment date at a discount rate equal to the Periodic Treasury Yield (defined below) exceeds the outstanding principal balance of the Loan as of the prepayment date, multiplied by (B) a fraction whose numerator is the amount prepaid and whose denominator is the outstanding principal balance of the Loan as of the prepayment date. For purposes of the foregoing, “ Periodic Treasury Yield ” means the annual yield to maturity of the actively traded non-callable

 

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United States Treasury fixed interest rate security (other than any such security which can be surrendered at the option of the holder at face value in payment of federal estate tax or which was issued at a substantial discount) that has a maturity closest to (whether before, on or after) the Maturity Date (or if two or more such securities have maturity dates equally close to the Maturity Date, the average annual yield to maturity of all such securities), as reported in The Wall Street Journal or other authoritative publication or news retrieval service on the fifth (5th) Business Day preceding the prepayment date.

 

  (b) Additional Charge . If the Loan is prepaid on any day other than a Due Date, whether such prepayment is voluntary, involuntary or upon full acceleration of the principal amount of the Loan by Lender following a Default, Borrower shall pay to Lender on the prepayment date (in addition to the basic prepayment charge described in Section 10.2(a) above and all other sums then due and owing to Lender under the Loan and the other Loan Documents) an additional prepayment charge equal to the interest which would otherwise have accrued on the amount prepaid (had such prepayment not occurred) during the period from and including the prepayment date to and including the last day of the calendar month in which the prepayment occurred.

 

  (c) Exclusion . Notwithstanding the foregoing, no prepayment charge of any kind shall apply in respect to any prepayment resulting from Lender’s application of any insurance proceeds or condemnation awards or scheduled P&I Payment Amount to the outstanding principal balance of the Loan.

 

  10.3 Effect of Prepayment . No partial prepayment of the Loan shall change any Due Date or the P&I Payment Amount unless Lender otherwise agrees in writing. Notwithstanding the foregoing, however, (i) in the event of a Partial Defeasance, the P&I Payment Amount shall be reduced by the monthly principal and interest payment due under the New Note, and (ii) following the Earn-Out Advance, the P&I Payment Amount shall be adjusted based on the new outstanding principal balance of the Loan in the event of a prepayment of the Loan resulting from Lender’s application of any insurance proceeds as a result of a casualty at the Northrop VA Property.

 

  10.4 Waiver . Borrower waives any right to prepay the Loan, except under the terms and conditions set forth in this Article 10 and agrees that if the Loan is prepaid, Borrower shall pay the prepayment charge set forth above, subject to Section 10.1 and except as provided for in Section 10.2(c) . Borrower hereby acknowledges that: (a) the inclusion of this waiver of prepayment rights and agreement to pay the prepayment charge for the right to prepay the Loan was separately negotiated with Lender; (b) the economic value of the various elements of this waiver and agreement was discussed; and (c) the consideration given by Borrower for the Loan was adjusted to reflect the specific waiver and agreement negotiated between Borrower and Lender and contained herein.

ARTICLE 11. DEFEASANCE - FULL OR PARTIAL.

 

  11.1 Borrower Right to Defease . At any time (and from time to time) during the Defeasance Option Period, Borrower may elect to effect a Full Defeasance or a Partial Defeasance, the last Defeasance of all Property being deemed a Full Defeasance, all in accordance with the provisions of this Article 11 , at Borrower’s sole cost and expense. A Partial Defeasance shall be permitted only in connection with a release of an Individual Property or to avoid a Cash Trap Event Period caused by clause (b) in the definition thereof in the Cash Management Agreement.

 

  11.2 Conditions . Borrower shall only have the right to cause a Defeasance if all of the following conditions have been satisfied:

 

  (a)

Notice . Borrower shall give at least thirty (30) days written notice to Lender specifying Borrower’s intended Defeasance Date and, for a Partial Defeasance, the Individual Property or Properties affected. Simultaneously with the delivery of such notice, Borrower shall deposit with Lender an amount reasonably estimated by Lender to be sufficient to reimburse Lender’s anticipated reasonable and actual out of pocket expenses

 

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in connection with the Defeasance, for which Borrower shall be solely responsible whether or not the Defeasance shall be completed. If any such notice shall have been given by Borrower, Borrower shall be permitted to revoke such notice in writing prior to the Defeasance Date, provided Borrower pays all of Lender’s reasonable third party expenses incurred in connection with the proposed Defeasance or Partial Defeasance. Upon completion of the Defeasance or revocation by Borrower as specified above, Lender shall return any surplus deposit to Borrower.

 

  (b) No Default . No Default shall exist either on the date of receipt of Borrower’s notice under Section 11.2(a) above or on the Defeasance Date; provided, however, Borrower shall be permitted to conduct a Partial Defeasance, subject to all of the other conditions for a Partial Defeasance herein, while a Default exists if the release of the Property subject to the Partial Defeasance will cure such Default.

 

  (c) Payments . Borrower shall pay in full, on or before the Defeasance Date (i) all unpaid interest accruing under the Loan to and including the Defeasance Date (or otherwise cause Successor Borrower to assume liability for such interest), (ii) all other sums due under the Loan and the other Loan Documents on or before the Defeasance Date, (iii) all reasonable and actual out of pocket escrow, closing, recording, legal, Rating Agency and other third party fees, costs and expenses paid or actually incurred by Lender and its agents in connection with the Defeasance, the release of the lien of the Mortgage on the Property or the Individual Property, as the case may be, the review of the proposed Defeasance Collateral and the preparation of the Defeasance Security Agreements and related documentation, (iv) an administrative fee to Lender of $35,000, and (v) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Loan or the New Note, or in connection with the Defeasance, excluding income taxes. Lender shall cooperate with Borrower to effect a Partial Defeasance or Full Defeasance upon notice by Borrower of its decision to effectuate the same.

 

  (d) Deliveries . Borrower shall, at Borrower’s sole cost and expense, deliver the following items to Lender on or before the Defeasance Date:

 

  (i) For any Partial Defeasance, the New Note, and the Amended Note evidencing only the remaining principal balance of the Loan (i.e., the outstanding principal balance of the Loan immediately prior to the Partial Defeasance, less the principal balance of the New Note). The New Note and other Defeasance Security Agreements shall not be cross-defaulted with the Amended Note and other Loan Documents. Under no circumstances shall the New Note be subject to prepayment prior to the Open Period Start Date. For the avoidance of doubt, the Amended Note shall have a principal and interest payment based on the remaining principal balance of the undefeased portion of the Loan and the New Note shall have a principal and interest payment based on the defeased portion of the Loan. The principal and interest payable on the New Note and the Amended Note, in the aggregate, will, immediately following the Partial Defeasance, equal the principal and interest payable on the Loan immediately prior to the Partial Defeasance;

 

  (ii)

The Defeasance Collateral, as substitute collateral for the Loan or, for a Partial Defeasance, for the New Note, provided, however, that the payments generated from the Defeasance Collateral (without regard to earnings from reinvestment of proceeds) must be, in timing and amounts, sufficient to provide for payment prior, but as close as possible, to (A) all Due Dates occurring after the Defeasance Date (with each such payment being equal to or greater than the amount of corresponding amount of scheduled principal and/or interest required (as applicable) to be paid under the Loan or, for a Partial Defeasance, under the New Note) for the balance of the term of such note and (B) the Open Period

 

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Start Date (with such payment being equal to or greater than the outstanding principal balloon payment together with all interest due with respect to the Loan or, for a Partial Defeasance, with respect to the New Note, on the Open Period Start Date and assuming for purposes of calculating the outstanding principal balloon payment pursuant to this clause d(ii) only, that the Open Period Start Date is the Maturity Date); and provided further, however, that Borrower shall take such actions, enter such agreements and issue such orders or directions (including those specified below), as are necessary or appropriate and in accordance with customary commercial standards to effectuate book-entry transfers and pledges through the book-entry facilities of the institution holding the Defeasance Collateral or otherwise to create and perfect a valid, enforceable, first priority security interest in the Defeasance Collateral in favor of Lender;

 

  (iii) The Defeasance Security Agreements creating, attaching and perfecting a first priority security interest in favor of Lender in the Defeasance Collateral, which agreements shall provide, among other things, that all payments generated by the Defeasance Collateral shall be paid directly to Lender and applied by Lender to amounts then due and payable under the Loan or, for a Partial Defeasance, under the New Note;

 

  (iv) A certificate of Borrower certifying that all of the requirements of this Article 11 have been satisfied;

 

  (v) Opinions of counsel for Borrower, addressed to Lender and all Rating Agencies and delivered by counsel satisfactory to Lender, subject only to customary assumptions, qualifications and exceptions, stating, among other things, that (a) Lender has a perfected first priority security interest in the Defeasance Collateral, (b) the Defeasance Security Agreements are enforceable against Borrower or successor Borrower, as applicable, in accordance with their terms and (c) any REMIC that holds the Loan immediately prior to the Defeasance will not, as a result of the Defeasance, fail to maintain its status as a REMIC;

 

  (vi) A certificate, addressed to Lender and all Rating Agencies, from a firm of independent certified public accountants reasonably acceptable to Lender, subject only to customary assumptions, qualifications and exceptions, certifying that the Defeasance Collateral satisfies the requirements of Section 11.2(d)(ii) above and certifying that in no fiscal year of Successor Borrower will the interest earned on the Defeasance Collateral exceed the interest payable for the same period on the Loan or, for a Partial Defeasance, under the New Note;

 

  (vii) If the Loan is held by a REMIC, written evidence from the Rating Agencies that the Defeasance will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the Defeasance for any securities representing interests in such REMIC which are then outstanding; and

 

  (viii) Such other certificates, opinions, documents or instruments as are customary in commercial mortgage defeasance transactions to effect the Defeasance.

 

  (e) Partial Release Conditions for an Individual Property . For a Partial Defeasance, the following additional conditions for a release of an Individual Property shall also have been satisfied:

 

  (i) The Release Property shall be (a) sold in its entirety pursuant to a bona fide sale of such Property to a third party purchaser that is not an Affiliate of Borrower or (b) transferred in its entirety to an Affiliate of Borrower in connection with a refinancing of that Property;

 

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  (ii) The principal amount of the New Note shall be no less than the applicable Release Price, or, in the event of a Partial Defeasance as a result of the substitution of the Northrop VA Property, for an amount equal to the difference between (i) fifteen percent (15%) of the outstanding principal balance of the Loan at the time of the substitution in accordance with Section 14.2 hereof and (ii) the Allocated Loan Amount attributable to the Northrop VA Property;

 

  (iii) If the Loan has been securitized, (A) the Partial Release shall not cause any of the Rating Agencies to withdraw, qualify or downgrade the then-applicable rating on any security issued in connection with such securitization and, if required by Lender, Lender shall have received written confirmation of this from the applicable Rating Agencies; and (B) the Partial Release shall not (1) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G-2(b) or (2) cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code, and, if required by Lender, Lender shall have received an opinion of counsel to this effect, in form and content and issued by counsel satisfactory to Lender;

 

  (iv) If the Release Party was covered by a title policy which covered any other Property not released, Borrower shall have delivered any title endorsements or updated title reports as Lender may reasonably require with respect to any of the Properties not being released; and

 

  (v) All conditions, if any, for release of the Release Property under the Mezzanine Loan Agreement, if any, shall have been satisfied or will be satisfied simultaneously therewith.

 

  (f) Release of Lien . Upon satisfaction of all conditions specified in this Article 11 , the Property and the Collateral (or, for a Partial Defeasance, the Defeasance Property and the associated portion of the Collateral) shall be released from the lien of the Mortgage and the other Loan Documents, and the Defeasance Collateral and the proceeds thereof shall constitute the only collateral securing the obligations of Borrower under the Loan and the other Loan Documents (or, for a Partial Defeasance, under the New Note and the Defeasance Security Agreements). Lender shall, at Borrower’s expense, prepare, execute and deliver any instruments reasonably necessary to release the lien of the Mortgage and other Loan Documents from the Defeasance Property and the Collateral (or, for a Partial Defeasance, the Defeasance Property and the associated portion of the Collateral).

 

  (g)

Assignment and Assumption . In connection with the Defeasance, Borrower shall, at the request of Lender, assign all of its right, title and interest in and to the pledged Defeasance Collateral and all its obligations and rights under the Loan (or, for a Partial Defeasance, the New Note) and the Defeasance Security Agreements to Successor Borrower. Successor Borrower shall execute an assumption agreement in form and substance customary in commercial mortgage defeasance transactions, pursuant to which it shall assume Borrower’s obligations under the Loan (or, for a Partial Defeasance, the New Note) and the Defeasance Security Agreements and Borrower shall be released from such obligations. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender opinions of counsel addressed to Lender and all Rating Agencies, in form and substance customary in commercial Defeasance transactions and delivered by counsel reasonably satisfactory to Lender, and subject only to customary assumptions, qualifications and exceptions, stating, among other things, that such assumption agreement is enforceable against Borrower and Successor Borrower in accordance with its terms and that the Loan (or, for a Partial Defeasance, the New Note) and the Defeasance Security Agreements, as so assumed, are enforceable against Successor Borrower in accordance with their respective terms, and a bankruptcy non-consolidation opinion with respect to Successor Borrower, its equity owners and such other parties as Lender may reasonably require; and (ii) pay all reasonable and actual out of pocket costs

 

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and expenses incurred by Lender and its agents in connection with such assignment and assumption (including, without limitation, the formation or review of Successor Borrower and the preparation of the assumption agreement and related documentation). Upon such assumption by Successor Borrower, Borrower shall be relieved of its obligations under the Loan (or, for a Partial Defeasance, under the New Note), the Defeasance Security Agreements and the other Loan Documents, but, in the latter case, only to the extent applicable to the Individual Property affected by the Defeasance other than (i) representations and warranties made in connection with the Defeasance, (ii) the obligation to effect the Defeasance in accordance with this Article 11 , and to provide further assurances as necessary to do so, (iii) liability for losses to Lender resulting from an avoidance, rescission or set-aside of the Defeasance as a result of actions taken by Borrower, and (iv) those obligations which are specifically stated in the Loan Documents to survive the repayment of the Loan or other termination, satisfaction, assignment, amendment or restatement of the Loan, the Defeasance Security Agreements or the other Loan Documents or Lender’s exercise of its rights and remedies under any of such documents and instruments.

ARTICLE 12. INSURANCE

 

12.1 REQUIRED INSURANCE .

Throughout the term of the Loan, Borrower shall maintain the following types of insurance in the form and content as set forth in this Article 12.

 

  (a) Casualty Insurance . Borrower, at its sole cost and expense, will keep the Property and the Collateral insured during the entire term of the Loan, for the mutual benefit of Borrower and Lender, against fire and such other hazards that would be covered by an insurance policy issued on a Special Form Cause of Loss - “ All Risk ” basis (the “ Casualty Policy ”). The Casualty Policy shall:

 

  (i) include coverage for, and specifically state that coverage is provided for: Windstorm Coverage (as defined in Section 12.1(b)(iii) , hail, Terrorism Coverage (as defined in Section 12.5 below) and, mold;

 

  (ii) provide coverage in an amount not less than full replacement value, without deduction for depreciation or co-insurance;

 

  (iii) have a deductible no greater than Twenty-Five Thousand and No/100 Dollars ($25,000.00) per occurrence, with the exception of a deductible no greater than (i) One Hundred Thousand and No/100 Dollars ($100,000.00) for any flood location within the 100-500 year flood plain and (ii) Fifty Thousand and No/100 Dollars ($50,000.00) per occurrence specific to Special Flood Hazard NFIP coverage for buildings located in Special Flood Hazard zones (other than a deductible of no greater than five percent (5%) of the replacement cost of the Property and the Collateral for Windstorm Coverage, Special Excess of NFIP Flood Hazard Coverage for buildings located in Special Flood Hazard Zones and earthquake insurance) and no more than five percent (5%) of underwritten net cash flow as determined by Lender in accordance with its internal underwriting procedures, and contain a replacement cost endorsement;

 

  (iv) contain a lender’s loss payable endorsement containing provisions equivalent to those provisions contained in Form 438BFU and naming Lender as the mortgagee (unless otherwise agreed by Lender in its sole discretion). If the lender’s loss payable endorsement is not provided on Form 438BFU or ISO Form CP1218, the applicable form number shall be referenced on the proposed endorsement and such endorsement must be acceptable to Lender;

 

35


  (v) be evidenced by an Accord 27 (Form Date: March, 1993), an Accord 28 (2003/10) or equivalent form, or such other form acceptable to Lender in its sole discretion in favor of Lender, as mortgagee and loss payee, and such evidence shall be provided to Lender. Borrower shall also provide Lender with a complete copy of the Casualty Policy promptly upon issuance but no later than sixty (60) days from the closing of the Loan;

 

  (vi) contain a so called “ Agreed Amount ” endorsement or a “ No Co-Insurance ” clause unless otherwise agreed by Lender in its sole and absolute discretion;

 

  (vii) Building Ordinance or Law Coverage sufficient to compensate for the cost of demolition, increased costs of construction and loss to any undamaged portion of the improvements at the Property if the current use of the Property or the improvements thereon are “nonconforming” or “legal nonconforming” or become “nonconforming” or “legal nonconforming” pursuant to the applicable zoning regulations and if full rebuildability and continued full use following a casualty is otherwise not permitted under such zoning regulations; and

 

  (viii) except as provided in subsection(a)(vi) above, not contain any co-insurance clauses or provisions that would reduce the coverage available under the Casualty Policy.

 

  (b) Other Property Insurance Coverage . Borrower must also provide the following additional forms of insurance coverage, whether as additional coverage under the Casualty Policy or by purchasing one or more additional policies, which additional coverage or policies shall comply with all of the requirements contained herein applicable to the Casualty Policy unless otherwise provided below:

 

  (i) Rental loss and/or business interruption insurance for a period of (i) twelve (12) months for all properties other than the Northrop VA Property (following the Earn-Out Advance) or (ii) eighteen (18) months for the Northrop VA Property (following the Earn-Out Advance), in an amount sufficient such that the insurer would not deem Borrower a co-insurer under the policy, (A) with loss payable to Lender; (B) which provides that after the physical loss to the Property and Collateral occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either return to the same level that existed prior to the loss, or the expiration of (i) twelve (12) months for all properties other than the Northrop VA Property (following the Earn-Out Advance) or (ii) eighteen (18) months for the Northrop VA Property (following the Earn-Out Advance), whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (C) if required by Lender from time to time, which contains an extended period of indemnity endorsement which provides that after the physical loss to such Property and Collateral has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property and Collateral are repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such rental loss and/or business interruption insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents, except to the extent such amounts are actually paid out of the proceeds of such rental loss and/or business interruption insurance, as applicable. Any rental loss and/or business interruption insurance proceeds shall be held by Lender and disbursed in accordance with Section 12 of this Agreement;

 

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  (ii) Comprehensive boiler and machinery coverage, without exclusion for explosion, covering all boilers or other pressure vessels, machinery and equipment located at the Property, in an amount not less than the full replacement value thereof and of the building or buildings housing the same and for “loss of income;”

 

  (iii) Pursuant to Section 12.1(a)(i) , coverage for windstorm (“ Windstorm Coverage ”), which Windstorm Coverage shall comply with each of the applicable requirements for insurance policies set forth in this Section 12 (including, without limitation, those relating to deductibles); provided, that, Lender, at Lender’s option, may require Borrower to obtain or cause to be obtained the Windstorm Coverage with higher deductibles than set forth above;

 

  (iv) At all times during which structural construction, repairs or alterations are being made with respect to the improvements on the Property, and only if the Property and liability coverage forms do not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the below mentioned Liability Policy; and (B) the insurance provided for in subsection (a)  above written in a so called Builder’s Risk Completed Value form, including coverage for 100% of the total construction costs (1) on a non reporting basis, (2) against “all risks” insured against pursuant to subsection (a)  above, and (3) including permission to occupy the Property; and

 

  (v) Earthquake insurance in any area of increased risk (20% PML or higher). Lender may change its requirements for Earthquake Insurance from time to time based on (i) review of a current probable maximum loss seismic study, to be prepared at Borrower’s expense (up to once every two years), forecasting the expected damage from any event anticipated to reoccur once in 475 years, on a 50%-certain statistical basis; (ii) actual and potential losses at any other locations the same earthquake insurance covers and sharing the policy’s occurrence and annual aggregate limits of available coverage; and (iii) the amount of lost business or rental income to be expected during Restoration of the Property.

 

  (c) Liability Insurance . Borrower, at its sole cost and expense and during the entire term of the Loan, shall maintain:

 

  (i) a Commercial General Liability Coverage Policy on the so-called “occurrence” form (“ Liability Policy ”) that includes coverage for contractual damages, property damage, personal and bodily injuries (including death resulting therefrom) and provide for a per occurrence minimum limit of liability of not less than $1,000,000 and a general aggregate minimum limit of liability of not less than $2,000,000 without any deductible or self-insured retention unless otherwise agreed by Lender in its sole and absolute discretion (to continue at not less than the aforesaid limits until reasonably required to be changed by Lender pursuant to Section 12.2 hereof), and such other liability insurance as is reasonably requested by Lender. The Liability Policy shall cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; and (4) contractual liability coverage with regard to occurrences for property damage, bodily injury, personal injury and death for so-called “insured” contracts as defined in the Liability Policy. Further, the policy shall include coverage for, and shall specifically state that coverage for, Terrorism Coverage and mold are not excluded. Borrower shall provide a Certificate of Liability Insurance that states the coverage limits per occurrence and indicates the full name of Borrower as a named insured, rather than as an additional insured; and

 

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  (ii) umbrella liability insurance in an amount not less than $50,000,000 million per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (i) above.

 

  (d) Blanket Insurance . Unless otherwise agreed to by Lender in its sole and absolute discretion, blanket policies shall be permitted only if (i) coverage will not be affected by any loss on other properties covered by the policies, (ii) the policy specifically allocates to each Property the amount of coverage from time to time required hereunder or shall otherwise provide the same protection as would a separate policy, and (iii) such policy is approved in advance in writing by Lender, and Lender’s interest is included therein as provided in this Agreement, (iv) such policy is otherwise issued in accordance with the terms of Section 12 of this Agreement, and (v) any changes or amendments made hereafter to such policy (including any endorsements and riders) are subject to the approval of Lender or its servicing agent. At all times, approval of any blanket policy remains subject to review and approval by Lender based on the schedule of locations and values.

 

12.2 ADDITIONAL INSURANCE .

In addition to the foregoing, Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) such additional insurance policies and coverage (i) as may be required pursuant to any and all agreements, declarations, covenants, and/or other arrangements to which Borrower is party or to which Borrower or the Property is subject, including, without limitation, any declarations of covenants, conditions and restrictions or similar covenants and/or restrictions affecting the Property, franchise agreements, licenses, leases, codes or ordinances, (ii) as set forth on Exhibit G attached hereto, and (iii) such other insurance as may from time to time be reasonably required by Lender in order to protect its interests and/or to satisfy then current market conditions and requirements.

 

12.3 POLICY REQUIREMENTS .

The Casualty Policy, the Liability Policy and each other insurance policy required hereunder (each, a “ Policy ” and, collectively, the “ Policies ”) shall:

 

  (a) provide that (i) Lender shall receive thirty (30) days’ notice of any modification, cancellation or expiration of the Policy, (ii) Lender shall receive ten (10) days’ notice of any nonpayment, and (iii) any such modification, cancellation or expiration without such notice shall not be effective against Lender;

 

  (b) unless otherwise agreed by Lender in its sole discretion and except for flood and earthquake insurance coverage, be issued by an insurer having a minimum rating of “A” or better from S&P, and, in the event of a ratings downgrade from S&P, Borrower shall be required to replace said insurer(s) with a carrier satisfying the claims paying ability ratings required by this subsection (b);

 

  (c) each insurer shall be admitted or authorized to do business in the state where the Property is located or shall otherwise be acceptable to Lender in its sole and absolute discretion;

 

  (d) be evidenced by a certificate or other documents in form and substance acceptable to Lender, and shall be delivered to Lender on or before the date hereof;

 

  (e) specifically state on the evidence thereof provided to Lender in accordance with this Article 12 , any exclusion or condition which is a deviation from standard insurance language or forms;

 

  (f) shall contain clauses or endorsements to the effect that the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ prior written notice to Lender and any other party named therein as an additional insured;

 

  (g) shall contain an endorsement providing that no policy shall be impaired or invalidated by virtue of any act, failure to act, negligence of or violation of declarations, warranties or conditions contained in such policy by Borrower, Lender or any other named insured, additional insured or loss payee, except for the willful misconduct of Lender knowingly in violation of the conditions of such policy; and

 

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  (h) shall contain clauses or endorsements to the effect that no act or negligence of Borrower, or anyone acting for Borrower, or of any tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned.

 

12.4 MAINTENANCE OF INSURANCE .

Borrower shall:

 

  (a) maintain, or cause to be maintained, all required insurance throughout the term of the Loan and while any obligations of Borrower to Lender under any of the Loan Documents remain outstanding, at Borrower’s expense, with companies, and in form and substance satisfactory to Lender. Insurance coverage as required hereunder which is provided by a tenant at the Property pursuant to a Lease shall be acceptable coverage hereunder provided Lender has reasonably approved such coverage and all of the requirements for such insurance coverage in this Article 12 are satisfied, including, but not limited to, Section 12.6(b) ;

 

  (b) as a condition to Lender entering into the Loan Documents and making the Loan, and as and when in the future requested by Lender, forward a paid receipt to Lender with respect to all insurance coverage required under this Agreement, and such receipt shall indicate the policy period, the property location and the annual premium delineated with respect to each type of coverage provided by such policy. Lender, by reason of accepting, rejecting, approving or obtaining insurance, shall not incur any liability for: (A) the existence, nonexistence, form or legal sufficiency of any insurance, (B) the solvency of any insurer or (C) the payment of claims;

 

  (c) give Lender written notice of the cancellation of any Policies within five (5) days of receipt of any such notice of cancellation from the insurer; and

 

  (d) deliver to Lender, not less than thirty (30) days prior to the expiration dates of the Policies (or certificates of insurance) theretofore furnished to Lender, renewal Policies (or certificates of insurance) accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder.

 

12.5 TERRORISM COVERAGE .

Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) coverage for Acts of Terror (the “ Terrorism Coverage ”), which such Terrorism Coverage shall comply with each of the applicable requirements for the Policies set forth above (including, without limitation, those relating to deductibles, except as otherwise agreed to by Lender in its sole and absolute discretion). As used herein, the term “ Terrorism Coverage ” shall mean coverage for Acts of Terror. As used above, “ Acts of Terror ” shall mean acts of terror or similar acts of sabotage; provided, that, for so long as the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (as the same may be further modified, amended, or extended, collectively, “ TRIPRA ”), remains in full force and effect, the provisions of TRIPRA shall determine what is deemed to be included within this definition of “ Acts of Terror ”. Notwithstanding the foregoing, in no event shall Borrower be required to pay annual premiums in excess of the TC Cap (defined below) in order to obtain the Terrorism Coverage (but Borrower shall be obligated to purchase such portion of the Terrorism Coverage as is obtainable by payment of annual premiums equal to the TC Cap). As used above, “ TC Cap ” shall mean a premium in an amount to provide coverage equal to the outstanding principal balance of the Loan.

 

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12.6 CERTAIN RIGHTS OF LENDER .

 

  (a) If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, with written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including obtaining such insurance coverage as Lender in its reasonable discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate;

 

  (b) Borrower shall assign the Policies or proofs of insurance to Lender, in such manner and form that Lender and its successors and assigns shall at all times have and hold the same as security for the payment of the Loan. Lender shall be named as “Mortgagee” and “Loss Payee” on all Property Policies and as “Additional Insured” on any Liability Policy. If Borrower elects to obtain any insurance which is not required under this Agreement, all related insurance policies shall be endorsed in compliance with this Section 12.6(b) , and such additional insurance shall not be canceled without prior notice to Lender. From time to time upon Lender’s request, Borrower shall identify to Lender all insurance maintained by Borrower with respect to the Property. The proceeds of Policies coming into the possession of Lender shall not be deemed trust funds, and Lender shall be entitled to apply such proceeds as provided in Article 12 of this Agreement; and

 

  (c) Borrower shall give immediate written notice of any loss to the insurance carrier and to Lender. Borrower hereby irrevocably authorizes and empowers Lender, as attorney in fact for Borrower coupled with an interest, to notify any of Borrower’s insurance carriers to add Lender as a loss payee, mortgagee insured or additional insured, as the case may be, to any policy maintained by Borrower (regardless of whether such policy is required under this Agreement), to make proof of loss, to adjust and compromise any claim under insurance policies, to appear in and prosecute any action arising from such Policies, to collect and receive insurance proceeds, and to deduct therefrom Lender’s reasonable expenses incurred in the collection of such proceeds. Nothing contained in this Section 12.6(c) , however, shall require Lender to incur any expense or take any action hereunder.

 

12.7 CASUALTY AND CONDEMNATION; RESTORATION PROCEEDS .

 

  (a)

Any and all awards, compensation, reimbursement, damages, proceeds, settlements, and other payments or relief paid or to be paid, together with all rights and causes of action relating to or arising from, (i) any insurance policy maintained by, on behalf of, or by any tenant of the Property for the benefit of, Borrower following any damage, destruction, casualty or loss to all or any portion of the Property (a “ Casualty ”, and such proceeds, “ Insurance Proceeds ”) or (ii) any temporary or permanent taking or voluntary conveyance of all or part of the Property, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority whether or not the same shall have actually been commenced (a “ Taking ”, and such proceeds, “ Condemnation Proceeds ”, and together with Insurance Proceeds, collectively, “ Restoration Proceeds ”) are hereby assigned to Lender as additional collateral security hereunder subject to the Lien of the Mortgage, to be applied in accordance with this Article 12 . Borrower shall promptly notify Lender of any Casualty or Taking, but in no event later than ten (10) days thereafter. Subject to the terms and provisions of the Leases, Lender shall be entitled to receive and collect all Restoration Proceeds, and Borrower shall instruct and cause the issuer of each policy of insurance described herein and any applicable Governmental Authority to deliver to Lender all Restoration Proceeds. Borrower shall execute such further assignments of the Restoration Proceeds as Lender may from time to time reasonably require. Notwithstanding the foregoing, if the Restoration Proceeds, less the amount of Lender’s reasonable costs and expenses (including attorneys’ fees and costs) incurred in collecting the same (the “ Net Restoration Proceeds ”), are $2,000,000 or less (the “ Restoration Proceeds Threshold ”), provided no Default then exists, Lender shall disburse such Net Restoration Proceeds directly to Borrower and Borrower must use such Net Restoration Proceeds to restore and/or repair the Property. All Insurance Proceeds received by Borrower or

 

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Lender in respect of business interruption coverage, and all Condemnation Proceeds received with respect to a temporary Taking available to Borrower, shall be deposited in a segregated escrow account with Lender or its servicer, as applicable, and Lender shall estimate the number of months required for Borrower to restore the damage caused such Casualty or replace cash flow interrupted by such temporary Taking, as applicable, and shall to the extent of available proceeds (and subject to any other applicable requirements herein) divide the aggregate proceeds by such number of months, and, provided no Default then exists, shall disburse a monthly installment thereof to the Restricted Account each such month to be held and disbursed in accordance with the terms of the Cash Management Agreement. Subject to Lender’s rights under Section 12.8 , provided no Default has occurred and is continuing and the Restoration has been completed in accordance with this Agreement, any Net Restoration Proceeds available to Borrower for Restoration, to the extent not used by Borrower in connection with, or to the extent they exceed the cost of such Restoration and any reasonable costs incurred by Lender, shall be paid to Borrower.

 

  (b) Lender shall be entitled at its option to participate in any compromise, adjustment or settlement in connection with (i) any insurance policy claims relating to any Casualty, and (ii) any Taking in an amount in controversy, in either case, in excess of the Restoration Proceeds Threshold, and Borrower shall within ten (10) Business Days after request therefor reimburse Lender for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with such participation. Borrower shall not make any compromise, adjustment or settlement in connection with any such claim in excess of the Restoration Proceeds Threshold or if a Default then exists without the prior written approval of Lender, which approval shall not be unreasonably withheld. Borrower shall not make any compromise, adjustment or settlement in connection with any claim unless same is commercially reasonable.

 

  (c) If and to the extent Restoration Proceeds are not required to be made available to Borrower to be used for the Restoration of the Property affected by the Casualty or Taking, as applicable, pursuant to this Agreement, Lender shall be entitled, without Borrower’s consent but subject to the rights of the tenant under any Lease, to apply such Restoration Proceeds or the balance thereof, at Lender’s option either (i) to the full or partial payment or prepayment of the Loan, or (ii) to the Restoration of all or any part of the Property affected by the Casualty or Taking, as applicable. In the event that a Casualty or Taking exceeds the thresholds set forth in Section 12.8(d) hereof and Lender has elected to apply the Restoration Proceeds thereof to the outstanding principal balance of the Loan, Borrower shall be permitted to release the affected Property from the Lien of the Mortgage.

 

12.8 RESTORATION .

Borrower shall restore and repair (or shall cause the restoration and repair of) the Property or any part thereof now or hereafter damaged or destroyed by any Casualty or affected by any Taking; provided, however, that if the Casualty is not insured against or insurable, Borrower shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in Section 12.7 , Lender agrees that Lender shall make the Net Restoration Proceeds (other than business interruption insurance proceeds, which shall be held and disbursed as provided in Section 12.7 ) available to Borrower for Borrower’s restoration and repair of the Property affected by the Casualty or Taking (a “ Restoration ”), as applicable, on the following terms and subject to Borrower’s satisfaction of the following conditions; provided , that Lender shall have the right to waive any of the following conditions in its sole and absolute discretion:

 

  (a) At the time of such Casualty or Taking, as applicable, and at all times thereafter there shall exist no Default;

 

  (b) The Property affected by the Casualty or Taking, as applicable, shall be capable of being restored (including replacements) to substantially the same condition, utility, quality and character, as existed immediately prior to such Casualty or Taking, as applicable, in all material respects with a fair market value and projected cash flow of the Property equal to or greater than prior to such Casualty or Taking, as applicable;

 

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  (c) Borrower shall demonstrate to Lender’s reasonable satisfaction Borrower’s ability to make the scheduled payments due under the Loan coming due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by Borrower);

 

  (d) (i) in the event of a Casualty, less than thirty percent (30%) of each of (1) the fair market value of the Property and (2) the rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (ii) in the event of a Taking, less than fifteen percent (15%) of each of (1) the fair market value of the Property and (2) the rentable area of the Property is taken, no material portion of the Improvements is located on such land and such Taking does not materially impair the existing access to the Property. In this clause (d), the fair market value shall be reasonably determined by Lender, provided, however, if Borrower reasonably objects to Lender’s determination of fair market value, the fair market value shall be determined by an appraisal reasonably acceptable to Borrower and Lender;

 

  (e) Borrower shall have provided to Lender all of the following, and collaterally assigned the same to Lender pursuant to assignment documents reasonably acceptable to Lender: (i) an architect’s contract with an architect reasonably acceptable to Lender and complete plans and specifications for the Restoration of the Property lost or damaged to the condition, utility and value required by Section 12.8(b) ; (ii) fixed-price or guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, in Lender’s reasonable opinion, to complete the Restoration (which funds shall be held by Lender as additional collateral securing the Loan and shall be disbursed, if at all, pursuant to this Article 12 ); and (iv) copies of all permits and licenses necessary to complete the Restoration in accordance with the plans and specifications and all applicable laws;

 

  (f) Borrower shall use commercially reasonable efforts to commence such work within one hundred eighty (180) days after such Casualty or Taking, as applicable, and shall diligently pursue such work to completion;

 

  (g) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (A) the date six (6) months prior to the Maturity Date, (B) such time as may be required under applicable laws in order to repair and restore the Property to the condition as required hereunder, (C) the expiration of the business interruption insurance coverage referred to in Section 12.1(b)(ii) , and (D) earliest date required pursuant to the terms of any applicable Major Lease; and

 

  (h) the Property and the use thereof after the Restoration will be in compliance with all applicable laws in all material respects.

 

12.9 DISBURSEMENT .

 

  (a) Each disbursement by Lender of such Restoration Proceeds shall be funded subject to conditions and in accordance with disbursement procedures which a commercial construction lender would typically establish in the exercise of sound banking practices, including, without limitation, requiring lien waivers, performance and insurance bonds, and any other documents, instruments or items which may be customarily required by lenders.

 

  (b)

In no event shall Lender be obligated to make disbursements of Restoration Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as determined by Lender, less, as to each contractor, subcontractor or materialman engaged in a Restoration, an amount equal to the greater of (i) ten percent (10%) of the costs actually incurred for work in place as part of such Restoration, as reasonably determined by Lender, and (ii) the amount actually withheld by Borrower (the “ Casualty Retainage ”). The Casualty Retainage shall not be released until Lender reasonably determines that the Restoration

 

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has been completed in accordance with the provisions of this Agreement and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage.

ARTICLE 13. INDEMNITY

 

13.1 INDEMNITY .

BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS AND ASSIGNS (EACH, AN “ INDEMNITEE ”) FROM AND AGAINST ANY AND ALL ACTUAL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND REASONABLE LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH LENDER OR SUCH OTHER INDEMNITEE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS, COVENANTS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR, SUBCONTRACTOR OR MATERIALS SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS, OR LEGAL OR OTHER EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. BORROWER SHALL PROMPTLY PAY TO LENDER UPON DEMAND (WHICH DEMAND SHALL BE GIVEN PROMPTLY PROVIDED FAILURE TO PROMPTLY DELIVER SUCH DEMAND SHALL NOT ADVERSELY AFFECT LENDER’S RIGHTS HEREUNDER) ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF ANY SECURITY FOR THE LOAN.

 

13.2 DUTY TO DEFEND, LEGAL FEES AND OTHER FEES AND EXPENSES .

Upon written request by any Indemnitee, Borrower shall defend such Indemnitee (if requested by any Indemnitee, in the name of the Indemnitee) by attorneys and other professionals approved by the Indemnitee. Notwithstanding the foregoing, any Indemnitee may, in their sole discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnitee, their attorneys shall control the resolution of any claim or proceeding (other than a settlement thereof, which will require the prior written consent of Borrower). Upon demand, Borrower shall pay or, in the sole discretion of the Indemnitee, reimburse, the Indemnitee for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

 

13.3 MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION .

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each Indemnitee from and against any and all Losses imposed upon or incurred by or asserted against any Indemnitee and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents.

 

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13.4 ERISA INDEMNIFICATION .

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnitee from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Indemnitee may incur, directly or indirectly, as a result of a default under Sections 5.1(i) and 7.2 of this Agreement.

 

13.5 SPECIAL SERVICING .

Borrower shall pay all reasonable special servicing fees relating the transfer of the Loan to special servicing at any time during the term of the Loan and for so long as the Loan is in special servicing. The obligations of Borrower set forth in this Section 13.5 are limited to the Borrower and Guarantor shall have no liability to Lender hereunder.

ARTICLE 14. TRANSFER AND SUBSTITUTION OF PROPERTY

 

14.1 TRANSFER OF PROPERTY; ASSUMPTION OF LOAN .

Notwithstanding anything to the contrary contained in the Mortgage, Lender shall consent to the voluntary sale or exchange of all (but not a portion) of the Property by Mortgagor and an assumption of the Loan by the transferee no more than three (3) times so long as no Default has occurred and is continuing and all of the following conditions precedent have been satisfied:

 

  (a) Notice . Lender’s receipt of not less than forty-five (45) days’ prior written notice of the proposed sale or exchange;

 

  (b) Credit Review and Underwriting . Lender’s reasonable determination that the proposed purchaser, the proposed guarantor(s), if any, and the Property all satisfy Lender’s then applicable credit review and market underwriting standards consistently applied to all borrowers, taking into consideration, among other things, (a) the experience and financial strength and condition and credit quality of the proposed purchaser and the proposed guarantor(s), (b) any decrease in the Property’s cash flow which would result from any increase in real property taxes due to any anticipated reassessment of the Property for tax purposes, and (c) any requirement of Lender that the proposed purchaser satisfy Lender’s then applicable criteria for a single purpose bankruptcy remote entity;

 

  (c) Experience . Lender’s reasonable determination that the proposed purchaser possesses satisfactory recent experience in the ownership and operation of properties similar to the Property;

 

  (d) Impounds . Lender’s receipt of such new or increased Impounds as Lender may reasonably require, including, without limitation, new or increased Impounds for taxes, insurance, tenant improvements and leasing commissions, capital improvements and capital expenditures, and the amendment of the Loan Documents to require the purchaser to make monthly deposits of such new or increased Impounds for such purposes thereafter;

 

  (e) Documents and Instruments . Lender’s receipt of such fully executed documents and instruments as Lender shall reasonably require, in form and content reasonably satisfactory to Lender, including, without limitation, (i) an assumption agreement under which the purchaser assumes all obligations and liabilities of Borrower under this Agreement and the other Loan Documents and agrees to such amendments to the Loan Documents as Lender may reasonably require in order to reflect the change in the borrowing entity and principals and any new or increased Impounds, and (ii) a consent to the sale or exchange by each existing Guarantor and a reaffirmation of each Guarantor’s obligations and liabilities under each guaranty or the execution of new guaranties by new guarantors satisfactory to Lender in its reasonable discretion,

 

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  (f) Opinions . The purchaser shall furnish an opinion of counsel reasonably satisfactory to Lender and its counsel (i) that the assumption of the Loan has been duly authorized, executed and delivered, and that the Note, the assumption agreement and the other Loan Documents are valid, binding and enforceable against the purchaser in accordance with their terms, (ii) that purchaser, any member or general partner of the purchaser (including any SPE Party), and any additional signatory of the purchaser have been duly formed or organized and are in existence and good standing, and (iii) with respect to such other matters as Lender may reasonably request, and if required in connection with the original Loan, a bankruptcy non-consolidation opinion with respect to the purchaser, its equity owners, Guarantor and such other parties as Lender may require, substantially in the form as executed at closing of the original Loan;

 

  (g) Title Insurance . If required by Lender, delivery to Lender of evidence of title insurance reasonably satisfactory to Lender insuring Lender that the lien of the Mortgage and the priority thereof will not be impaired or affected by reason of such sale or exchange of the Property;

 

  (h) Assumption Fee . Payment to Lender of an assumption fee equal to one half of one percent (.5%) of the then outstanding principal balance of the Note, but not less than Fifteen Thousand and No/100 Dollars ($15,000);

 

  (i) Costs and Expenses . Payment to Lender of any and all reasonable costs and expenses paid or incurred by Lender in connection with any request for a sale or exchange, including, without limitation, all in-house or outside counsel attorneys’ fees, title insurance fees, lien and tax search fees, appraisal fees, inspection fees, and environmental consultant’s fees and any fees or charges of the applicable Rating Agencies;

 

  (j) No Downgrade . If required by Lender and with Lender’s assistance, delivery to Lender of written evidence from the Rating Agencies that such sale or exchange will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the sale or exchange for any securities issued in connection with the securitization of the Loan which are then outstanding; and

 

  (k) No Adverse REMIC Event . If required by Lender, delivery to Lender of an opinion of tax counsel, in form and content and issued by tax counsel satisfactory to Lender’s counsel, that such sale or exchange shall not (a) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G-2(b) or (b) cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code.

Lender shall fully release Borrower and each existing Guarantor from any further obligation or liability to Lender under this Agreement and the other Loan Documents upon the assumption by the purchaser and each new guarantor of all of Borrower’s and each Guarantor’s obligations and liabilities hereunder and under the Loan Documents and the satisfaction of all other conditions precedent to a sale or exchange in accordance with the provisions of this Article 14 .

Notwithstanding the foregoing or anything herein to the contrary, Borrower may not exercise its rights pursuant to this Article 14 during the period that commences on the date that is sixty (60) days prior to the date of any intended securitization of the Loan and ending on the date that is sixty (60) days after the date of such securitization of the Loan.

 

14.2 SUBSTITUTION .

 

  (a)

Subject to the terms and conditions set forth in this Section 14.2 , following the Earn-Out Advance, Borrower may obtain a release of the Lien of the Mortgage (and the related Loan Documents) on the Northrop VA Property (the “ Substituted Property ”), but only up to fifteen percent (15%) of the outstanding principal balance of the Loan, it being understood that the difference between fifteen

 

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(15%) of the outstanding principal balance of the Loan and the Allocated Loan Amount of the Substituted Property shall be subject to Partial Defeasance, by substituting therefor another commercial property or properties of like kind and quality acquired by Borrower or an Affiliate thereof (the “ Substitute Property ”), provided that the following conditions precedent are satisfied:

(A) the purchase option granted with respect to the Northrop VA Property shall have been exercised;

(B) all conditions to substitute the Northrop VA Property in the Mezzanine Loan Agreement shall have been satisfied;

(C) the Maturity Date shall have not occurred.

(D) Lender shall have received at least forty-five (45) days prior written notice requesting the substitution and identifying the Substitute Property.

(E) Lender shall have received a copy of a deed conveying all of Borrower’s right, title and interest in and to the Substituted Property to an entity other than Borrower pursuant to the purchase option with respect to the Northrop VA Property and a letter from Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Substituted Property is located.

(F) Lender shall have received a fee in the amount of one quarter of one percent (0.25%) of the Release Price for the Substituted Property.

(G) If the Loan is part of a Securitization, Lender shall have received an appraisal of the Substitute Property, dated no more than sixty (60) days prior to the substitution date, by an appraiser reasonably acceptable to the Rating Agencies.

(H) The fair market value of the Substitute Property shall not be less than one hundred five percent (105%) of the greater of (A) the fair market value of the Substituted Property as of the Disbursement Date and (B) the fair market value of the Substituted Property as of the date immediately preceding the substitution, which determination shall be made by (I) Lender in its reasonable discretion if the Loan is not part of a Securitization and (II) Lender based on the appraisals delivered pursuant to clause (G) above if the Loan is part of a Securitization.

(I) After giving effect to the substitution, the Debt Yield for the Loan for all of the Properties (excluding the Substituted Property and including the Substitute Property) is not less than the greater of (i) the Closing Date Debt Yield and (ii) the Debt Yield for the Loan for all of the Properties as of the date immediately preceding the substitution.

(J) The Adjusted Actual Net Operating Income for the Substitute Property as of the date of the substitution is greater than the Adjusted Actual Net Income for the Substitute Property of any of the prior three (3) years.

(K) The Adjusted Actual Net Operating Income for the Substitute Property is greater than one hundred five percent (105%) of the Adjusted Actual Net Operating Income for the Substituted Property.

(L) If the Loan is part of a Securitization, Lender shall have received (with Lender’s assistance) confirmation in writing from the Rating Agencies to the effect that such substitution will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such substitution for the securities, or any class thereof, issued in connection with the Securitization that are then outstanding. If the Loan is not part of a Securitization, Lender shall have consented in writing to such substitution, which consent shall not be unreasonably withheld.

 

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(M) No Default shall have occurred and be continuing and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each Loan Document on Borrower’s part to be observed or performed. Lender shall have received a certificate from Borrower confirming the foregoing, stating that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the substitution with respect to Borrower, the Properties and the Substitute Property and containing any other representations and warranties with respect to Borrower, the Properties, the Substitute Property or the Loan as the Rating Agencies may reasonably require, unless such certificate would be inaccurate, such certificate to be in form and substance reasonably satisfactory to the Rating Agencies.

(N) Borrower shall (A) have executed, acknowledged and delivered to Lender (I) such security instruments and UCC-1 financing statements with respect to the Substitute Property as Lender may reasonably require, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such security instruments and financing statements and agreeing to record or file, as applicable, such security instruments and financing statements in the appropriate recording or filing offices so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents and (II) a hazardous substances indemnity agreement with respect to the Substitute Property and (B) have caused the Guarantor to acknowledge and confirm their respective obligations under the Loan Documents. The required security documents, financing statements and other documents shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Substituted Property subject to modifications reflecting only the Substitute Property as the property that is the subject of such documents and such modifications reflecting the laws of the state in which the Substitute Property is located as are customarily delivered in similar transactions in such state and delivering the opinion as to the enforceability of such documents required pursuant to clause (T) below. The security instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such security instrument shall be equal to one hundred twenty-five percent (125%) of the allocated loan amount of the Substitute Property. The amount of the Loan allocated to the Substitute Property (such amount being hereinafter referred to as the “ Substitute Release Price ”) shall equal an amount equal to fifteen percent (15%) of the then current principal balance of the Loan.

(O) Lender shall have received (A) to the extent available any “tie-in” or similar endorsement to each title insurance policy insuring the Lien of an existing Mortgage as of the date of the substitution with respect to the title insurance policy insuring the Lien of the Mortgage with respect to the Substitute Property and (B) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) insuring the Lien of the Mortgage encumbering the Substitute Property, issued by the title company that issued the title insurance policies insuring the Lien of the existing Mortgages (or any other reputable national title insurance company approved by Lender) and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the title insurance policy insuring the Lien of the Mortgage encumbering the Substituted Property. The title insurance policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Substitute Release Price if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Substitute Release Amount, (2) insure Lender that the relevant Mortgage creates a

 

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valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such endorsements and affirmative coverages as are then available and are contained in the title insurance policies insuring the Liens of the existing Mortgages, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts or other evidence showing that all premiums in respect of such endorsements and title insurance policies have been paid.

(P) Lender shall have received a current survey for the Substitute Property, certified to the title company and Lender and their successors and assigns, in the same form and having the same content as the certification of the survey of the Substituted Property prepared by a professional land surveyor licensed in the state in which the Substitute Property is located and acceptable to the Rating Agencies. Such survey shall reflect the same legal description contained in the title insurance policy relating to such Substitute Property and shall include, among other things, a metes and bounds description of the real property comprising part of such Substitute Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each survey and each survey shall certify that the surveyed property is not located in a “one-hundred-year flood hazard area.”

(Q) Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for a Property hereunder have been satisfied with respect to the Substitute Property and evidence of the payment of all premiums payable for the existing policy period.

(R) Lender shall have received a Phase I environmental report from an environmental consultant that typically provides such reports to Lender, and, if recommended under the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any hazardous materials and is not subject to any risk of contamination from any off-site hazardous materials. If any such report discloses the presence of any hazardous materials or the risk of contamination from any off-site hazardous materials, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there are no longer any hazardous materials on the Substitute Property or any danger of contamination from any off-site hazardous materials that has not been fully remediated and (B) paid receipts indicating that the costs of all such remediation work have been paid.

(S) Borrower shall deliver or cause to be delivered to Lender (A) updates certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender on the Disbursement Date; (B) good standing certificates, certificates of qualification to do business in the jurisdiction in which the Substitute Property is located (if required in such jurisdiction); and (C) resolutions of Borrower authorizing the substitution and any actions taken in connection with such substitution.

(T) Lender shall have received the following opinions of Borrower’s counsel: (A) an opinion or opinions of counsel admitted to practice under the laws of the state in which the Substitute Property is located stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (N) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles, and that Borrower is qualified to do business and in good standing under the laws of the jurisdiction where the Substitute Property is located or that Borrower is not required by applicable law to qualify to do business in such jurisdiction; (B) an opinion of counsel acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (N)

 

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above were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any agreement, document or instrument to which Borrower is a party or to which it or its properties are bound; (C) an opinion of counsel acceptable to, the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that subjecting the Substitute Property to the Lien of the related Mortgage and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Lender to enforce its remedies under all of the Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder; (D) an update of the Non-Consolidation Opinion indicating that the substitution does not affect the opinions set forth therein; (E) an opinion of counsel acceptable to, the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the substitution and the related transactions are arms length transactions and do not constitute a fraudulent conveyance under applicable bankruptcy and insolvency laws and (F) if the Loan is part of a Securitization, an opinion of counsel acceptable to the Rating Agencies that the substitution does not constitute a “significant modification” of the Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust.

(U) Borrower shall have paid, or escrowed with Lender, all due and payable insurance premiums (unless the Property is covered by a blanket insurance policy), taxes and other charges relating to each of the Properties and the Substitute Property, including without limitation, (i) accrued but unpaid insurance premiums relating to each of the Properties and the Substitute Property, and (ii) currently due and payable Taxes (including any in arrears) relating to each of the Properties and the Substitute Property and (iii) currently due and payable maintenance charges and other impositions relating to each of the Properties and Substitute Property. Any Impounds or other amounts held by Lender with respect to the Substituted Property shall, at the Borrower’s election, be applied to (i) amounts payable by Borrower in connection with this Section 14.2(U) , (ii) returned to Borrower, or (iii) or applied to other amounts due and payable by Borrower under this Agreement.

(V) Borrower shall have paid or reimbursed Lender for all reasonable third party costs and expenses actually incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the substitution and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all reasonable costs and expenses of the Rating Agencies incurred in connection with the substitution.

(W) Lender shall have received annual operating statements and occupancy statements for the Substitute Property for the most current completed fiscal year and a current operating statement for the Substituted Property, each certified (to Borrower’s knowledge) to Lender as being true and correct in all material respects and a certificate from Borrower certifying (to Borrower’s knowledge) that there has been no material adverse change in the financial condition of the Substitute Property since the date of such operating statements.

(X) Borrower shall have delivered to Lender estoppel certificates from any existing tenants of the Substitute Property. All such estoppel certificates shall be substantially in the form approved by Lender in connection with the origination of the Loan and shall indicate that (1) the subject lease is a valid and binding obligation of the tenant thereunder, (2) there are no material defaults under such lease on the part of the landlord or tenant thereunder, (3) the tenant thereunder has no defense or offset to the payment of rent under such leases, (4) no rent under such lease has been paid more than one (1) month in advance, (5) the tenant thereunder has no option under such lease to purchase all or any portion of the Substitute Property, unless the lowest possible purchase price for such option to purchase exceeds the Release Price of the Substituted Property, and (6) all tenant improvement work required under such lease has been completed and the tenant under such lease is in actual occupancy of its leased premises. If an estoppel certificate indicates that all

 

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tenant improvement work required under the subject lease has not yet been completed, Borrower shall, if required by the Rating Agencies, deliver to Lender financial statements indicating that Borrower has adequate funds to pay all costs related to such tenant improvement work as required under such lease. In lieu of estoppel certificates delivered by tenants, Borrower may execute and deliver estoppel certificates with respect to such Leases for Leases of not more than 10% (in the aggregate) of the total square footage of the Substitute Property.

(Y) Lender shall have received copies of all tenant leases affecting the Substitute Property certified to Borrower’s knowledge as being true and correct.

(Z) Lender shall have received subordination, nondisturbance and attornment agreements in the form approved by Lender in connection with the origination of the Loan with respect to tenants designated by Lender at the Substitute Property.

(AA) Lender shall have received (A) an endorsement to the title insurance policy insuring the Lien of the Mortgage encumbering the Substitute Property insuring that the Substitute Property constitutes a separate tax lot or, if such an endorsement is not available in the state in which the Substitute Property is located, a letter from the title insurance company issuing such title insurance policy stating that the Substitute Policy constitutes a separate tax lot or (B) a letter from the appropriate taxing authority stating that the Substitute Property constitutes a separate tax lot (or other evidence with respect thereto).

(BB) Lender shall have received a physical conditions report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable legal requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of material damage or waste. If compliance with any legal requirements are not addressed by the physical conditions report, such compliance shall be confirmed by delivery to Lender of a certificate of an architect licensed in the state in which the Substitute Property is located, a letter from the municipality in which such Property is located, a certificate of a surveyor that is licensed in the state in which the Substitute Property is located (with respect to zoning and subdivision laws), an ALTA 3.1 zoning endorsement to the title insurance policy delivered pursuant to clause (O) above (with respect to zoning laws) or a subdivision endorsement to the title insurance policy delivered pursuant to clause (O) above (with respect to subdivision laws). If the physical conditions report recommends that any repairs be made with respect to the Substitute Property, such physical conditions report shall include an estimate of the cost of such recommended repairs and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such physical conditions report or a letter from the engineer that prepared such physical conditions report indicating that the recommended repairs were completed in good and workmanlike manner and (B) paid receipts indicating that the costs of all such repairs have been paid.

(CC) Lender shall have received a certified copy of the management agreement reflecting the Substitute Property as a property managed pursuant thereto and Manager shall have executed and delivered to Lender a consent and subordination agreement with respect to such management agreement in the same form as delivered to Lender on the Disbursement Date.

(DD) Lender shall have received such other and further approvals, opinions, documents and information in connection with the substitution as reasonably requested by the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization.

(EE) Lender shall have received copies of all contracts and agreements relating to the leasing and operation of the Substitute Property together with a certification of Borrower attached to each such contract or agreement certifying that the attached copy is a true and correct copy of such contract or agreement and all amendments thereto.

 

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(FF) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such substitution, a release of Lien (and related Loan Documents) for the Substituted Property for execution by Lender. Such release shall be in a form appropriate for the jurisdiction in which the Substituted Property is located. Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 14.2 have been satisfied.

(GG) The weighted average Lease terms at the Substitute Property based on Net Operating Income shall extend no less than three (3) years beyond the Maturity Date.

(HH) Upon the satisfaction of the foregoing conditions precedent, Lender will release its Lien from the Substituted Property to be released and the Substitute Property shall be deemed to be a Property for purposes of this Agreement and the Substitute Release Price with respect to such Substitute Property shall be deemed to be the Release Price with respect to such Substitute Property for all purposes hereunder.

ARTICLE 15. DUE ON SALE/ENCUMBRANCE

 

15.1 DUE ON SALE/ENCUMBRANCE .

 

  (a) Definitions . The following terms shall have the meanings indicated:

Restricted Party ” shall mean each of (i) Borrower, (ii) any SPE Party, (iii) any Intermediate Holdco, (iv) any Holdco, (v) Guarantor, and (vi) any shareholder, partner, member or non-member manager, or any direct legal or beneficial owner of Borrower, SPE Party, Intermediate Holdco, Holdco or Guarantor.

Transfer ” shall mean any sale, installment sale, exchange, mortgage, pledge, hypothecation, assignment, encumbrance or other transfer, conveyance or disposition, whether voluntarily, involuntarily or by operation of law or otherwise (but excluding Leases).

 

  (b) Property Transfers .

 

  (i) Prohibited Property Transfers . Except as otherwise permitted in this Agreement, Borrower shall not cause or permit any Transfer of all or any part of or any direct or indirect legal or beneficial interest in the Property or the Collateral (collectively, a “ Prohibited Property Transfer ”), including, without limitation, (A) a Lease of all or a material part of the Property for any purpose other than actual occupancy by a space tenant; and (B) the Transfer of all or any part of Borrower’s right, title and interest in and to any Leases or Payments.  

 

  (ii) Permitted Property Transfers . Notwithstanding the foregoing, none of the following Transfers shall be deemed to be a Prohibited Property Transfer: (A) a Transfer which is expressly permitted under this Agreement; (B) a Lease which is permitted under the terms of the Loan Documents; and (C) the sale of inventory in the ordinary course of business.

 

  (c) Equity Transfers .

 

  (i)

Prohibited Equity Transfers . Except as may be permitted under this Agreement, Borrower shall not cause or permit any Transfer of any direct or indirect legal or beneficial interest in a Restricted Party (collectively, a “ Prohibited Equity Transfer ”), including without limitation, (A) if a Restricted Party is a corporation, any merger, consolidation or other Transfer of such corporation’s stock or the creation or issuance of

 

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new stock in one or a series of transactions; (B) if a Restricted Party is a limited partnership, limited liability partnership, general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new limited partnership interests; (C) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Transfer of a non-managing membership interest or the creation or issuance of new non-managing membership interests; or (D) if a Restricted Party is a trust, any merger, consolidation or other Transfer of any legal or beneficial interest in such Restricted Party or the creation or issuance of new legal or beneficial interests.

 

 

  (ii) Permitted Equity Transfers . Notwithstanding the foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s reasonable out of pocket costs and expenses in connection therewith and (z) in the event the transfer of any direct or indirect equity ownership in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Party, such transfers, if otherwise permitted hereunder, shall also be conditioned upon delivery to Lender of a new Non-Consolidation Opinion addressing such transfer:

(A) a sale, transfer or assignment (each, a “ Transfer ”) by holders of direct or indirect interests in Borrower (each an “ Interest Holder ”) as of the Disbursement Date (including, without limitation, those interests held, directly or indirectly, by Dividend Capital Total Realty Trust Inc. (“ TRT ”) or Dividend Capital Total Realty Operating Partnership LP (“ TROP ”)) to another person or entity who is not an Interest Holder, provided, however, that (i) after taking into account any prior Transfers pursuant to this sentence, whether to the proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control (as hereinafter defined) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days after the date of such Transfer; and (iii) no Default shall have occurred and is continuing;

(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in TRT, or (ii) any operating partnership units in TROP, provided, however, that TRT and TROP shall continue to (x) Control (as defined in clause (ii) in the definition of Control) directly or indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower;

(C)(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in TRT or TROP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of TRT or TROP, (iii) the listing of the securities in TRT or TROP on a national securities exchange, (iv) the conversion of TRT or TROP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of any Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“ Affiliate Transferee ”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection

 

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with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of TRT or TROP, as applicable, then Borrower must satisfy each of the applicable conditions relating to an assumption of the Loan by a new transferee pursuant to the applicable section within the Loan Agreement;

(D) subject to clause (C) above, a sale, issuance or Transfer of shares or other securities of TRT or any of its affiliates, which are listed on any national securities exchange; and

(E)(1) the closing of the Mezzanine Loan and the execution and delivery of all of the Mezzanine Loan Documents and the performance of all of the obligations thereunder by Mezzanine Borrower and any other parties thereto and (2) foreclosure (or deed in lieu of foreclosure) by Mezzanine Lender of any direct or indirect membership interests of Borrower under any pledge agreement under the Mezzanine Loan, including under the Mezzanine Pledge Agreement.

 

15.2 REPLACEMENT MEZZANINE DEBT .

Notwithstanding anything to contrary contained in this Agreement, certain owners of Borrower shall be permitted to obtain mezzanine financing (the “ New Mezzanine Loan ”) upon the repayment in full of the Mezzanine Loan, which New Mezzanine Loan shall be secured by the membership or partnership interests in Borrower or the direct or indirect owners of Borrower, subject to the following conditions and requirements:

 

  (a) the New Mezzanine Loan shall be junior and subordinate to the Loan and subject to the terms of a New Mezzanine Intercreditor (defined below);

 

  (b) Lender’s review and approval in its reasonable discretion of all of the terms and conditions of the New Mezzanine Loan, including the interest rate and loan amount (unless such interest rate and loan amount are less than the interest rate and the loan amount of the Mezzanine Loan), and the documents evidencing the New Mezzanine Loan;

 

  (c) the New Mezzanine Loan shall only be payable out of any excess cash flow from the Property (i.e., after all debt service and other payments, reserve payments and escrows due under the Loan and all operating expenses have been paid) or from equity contributions, and as otherwise permitted under the New Mezzanine Intercreditor;

 

  (d) the Debt Yield, including for the purposes of this calculation the New Mezzanine Loan is not less than (i) 15.0% or (ii) in the event the Earn-Out Advance shall have been made, 13.7%;

 

  (e) the lender under the New Mezzanine Loan (the “ New Mezzanine Lender ”) shall be a Qualified Transferee and shall at all times during the term of the Loan be the sole owner and holder of the New Mezzanine Loan and shall not assign or pledge all or any portion thereof to any other third party other than a Qualified Transferee;

 

  (f) the New Mezzanine Lender shall enter into an intercreditor agreement with Lender in form and substance satisfactory to the Rating Agencies and reasonably satisfactory to Lender (the “ New Mezzanine Intercreditor ”);

 

  (g) the New Mezzanine Loan shall be nonrecourse to Borrower as to principal and interest required to be paid under the New Mezzanine Loan and shall not be secured by a lien against the Property;

 

  (h) Borrower shall reimburse Lender for all of Lender’s reasonable attorney’s fees and actual out-of-pocket expenses incurred by Lender in reviewing the New Mezzanine Loan documents and negotiating and documenting the New Mezzanine Intercreditor; and

 

  (i)

Borrower, at Borrower’s sole cost and expense and with Lender’s assistance, shall deliver a confirmation from the Rating Agencies that such New Mezzanine Loan will not result in a

 

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downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the sale or exchange for any securities issued in connection with the securitization of the Loan which are then outstanding.

The final capital structure of the New Mezzanine Loan is subject in all respects to Lender’s reasonable approval and the Rating Agencies’ approval, including, without limitation, the organizational structure of Borrower.

ARTICLE 16. MISCELLANEOUS PROVISIONS

 

16.1 FORM OF DOCUMENTS .

The form and substance of all documents, instruments, and forms of evidence to be delivered to Lender under the terms of this Agreement and any of the other Loan Documents shall (unless expressly set forth to the contrary) be subject to Lender’s approval as more particularly set forth hereunder and under the other Loan Documents and shall not be modified, superseded or terminated in any respect without Lender’s prior written approval.

 

16.2 NO THIRD PARTIES BENEFITED .

No Person other than Lender and Borrower (and Guarantor with respect to the Guaranty) and their respective permitted successors and assigns shall have any right of action under any of the Loan Documents.

 

16.3 NOTICES .

All notices, demands, or other communications under this Agreement and the other Loan Documents shall be in writing and shall be delivered to the appropriate party at the address set forth on the signature page of this Agreement (subject to change from time to time by written notice to all other parties to this Agreement). All notices, demands or other communications shall be considered as properly given if delivered personally or sent by certified mail, return receipt requested, or by overnight express mail or by overnight commercial courier service, charges prepaid. Notices so sent shall be effective upon receipt; provided, however, that non-receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication.

 

16.4 ONGOING CREDIT AUTHORIZATION .

Borrower grants authorization to Lender to perform credit investigation on Borrower, Guarantor and other Affiliates of Borrower from time to time over the term of the Loan at Lender’s expense.

 

16.5 ATTORNEY-IN-FACT .

Borrower hereby irrevocably appoints and authorizes Lender, as Borrower’s attorney-in-fact, after the occurrence and during the continuance of a Default, which agency is coupled with an interest, to execute and/or record at any time hereafter and during the term of the Loan in Lender’s or Borrower’s name any notices, instruments or documents that Lender reasonably deems necessary to protect or otherwise perfect Lender’s interest under any of the Loan Documents.

 

16.6 ACTIONS .

Borrower agrees that Lender, in exercising the rights, duties or liabilities of Lender or Borrower under the Loan Documents, may (upon prior consultation with Borrower) commence, appear in or defend any action or proceeding which is reasonably likely to have a Material Adverse Effect on the Property or the Loan Documents, and Borrower shall reimburse Lender upon demand for all such reasonable expenses so incurred or paid by Lender, including, without limitation, reasonable attorneys’ fees and expenses and court costs; provided that Section 16.10 shall apply with respect to disputes between Lender and Borrower.

 

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16.7 RIGHT OF CONTEST .

Borrower may contest in good faith any claim, demand, levy or assessment by any Person other than Lender which would constitute a Default if: (a) Borrower pursues the contest diligently, in a manner which Lender determines (in its reasonable discretion) is not prejudicial to Lender, and does not impair in any material respect the rights of Lender under any of the Loan Documents; and (b) Borrower deposits with Lender any funds or other forms of assurance (which may include funds then held as Impounds, as determined in Lender’s reasonable discretion) which Lender in good faith determines from time to time appropriate to protect Lender from the consequences of the contest being unsuccessful. Borrower’s compliance with this Section shall operate to prevent such claim, demand, levy or assessment from becoming a Default.

 

16.8 RELATIONSHIP OF PARTIES .

The relationship of Borrower and Lender under the Loan Documents is, and shall at all times remain, solely that of borrower and lender, and Lender neither undertakes nor assumes any responsibility or duty to Borrower or to any third party with respect to the Property, except as expressly provided in this Agreement and the other Loan Documents.

 

16.9 DELAY OUTSIDE LENDER’S CONTROL .

Lender shall not be liable in any way to Borrower or any third party for Lender’s failure to perform or delay in performing under the Loan Documents (and Lender may suspend or terminate all or any portion of Lender’s obligations under the Loan Documents) if such failure to perform or delay in performing results directly or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because of war, rebellion, insurrection, strike, lockout, boycott or blockade (whether presently in effect, announced or in the sole judgment of Lender deemed probable), or from any act of God or other cause or event beyond Lender’s control, provided that Lender provides prompt written notice of any such aforementioned event to Borrower. The limitation on Lender’s liability under this Section 16.9 shall be effective only during the continuance of any such aforementioned event.

 

16.10 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT .

If any attorney is engaged by Lender to enforce or defend, against Borrower, any SPE Party, Guarantor, Mezzanine Lender or any of their Affiliates, agents or representatives, any provision of this Agreement and/or any of the other Loan Documents, or as a consequence of any Default under the Loan Documents, with or without the filing of any legal action or proceeding, and including, without limitation, any reasonable fees and expenses incurred in connection with any “work-out” of the Loan or bankruptcy proceeding of Borrower, then Borrower shall pay to Lender, upon demand, the amount of all reasonable costs and expenses incurred by Lender in connection therewith (including reasonable attorneys’ fees and any then reasonable and customary loan servicing and/or special servicing fees applicable to the Loan (including, without limitation any reasonable “work-out” and/or liquidation fees)), together with interest thereon from the date of such demand until paid at the Default Rate; provided that, if any action is commenced in connection with any of the foregoing, the party who is determined to be the prevailing party in such action shall be entitled to be paid, and the non-prevailing party shall pay to the prevailing party, all reasonable attorneys’ fees and interest thereon as noted above as fixed by the court. As used herein the term “prevailing party” shall mean the party which obtains the principal relief it has sought, whether by compromise settlement or judgment. If the party which commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.

 

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16.11 IMMEDIATELY AVAILABLE FUNDS .

Unless otherwise expressly provided for in this Agreement, all amounts payable by Borrower to Lender shall be payable only in United States currency in immediately available funds.

 

16.12 LOAN SALES AND LOAN PARTICIPATIONS; DISCLOSURE OF INFORMATION .

Borrower hereby acknowledges that Lender may in one or more transactions (a) sell or securitize the Loan or portions thereof in one or more transactions through the issuance of securities, which securities may be rated by the Rating Agencies, (b) sell or otherwise transfer the Loan or any portion thereof one or more times (including selling or assigning its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee), (c) sell participation interests in the Loan one or more times (d) re-securitize the securities issued in connection with any securitization, and/or (e) further divide the Loan into two or more separate notes, including senior and junior notes, or components (the transactions referred to in clauses (a) through (e)  above, each a “ Secondary Market Transaction ” and collectively “ Secondary Market Transactions ”). With respect to any Secondary Market Transaction described in clause (e)  above, (i) such notes and note components may be assigned different principal amounts and interest rates, so long as (x) at all times prior to a Default, the weighted average of the interest rates payable under the Loan and such component notes(s), equals the Interest Rate as of the closing of the Loan and (y) immediately after the effective date of such modification, the aggregate amount of the outstanding principal balance under such component notes equals the outstanding principal balance of the Loan immediately prior to such modification, and (ii) Borrower, at Lender’s cost and expense, agrees to execute and deliver to Lender such non-material amendments to the Loan Documents, title insurance endorsements, legal opinions and other customary loan documentation as Lender may reasonably require in connection therewith, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. Provided that all such recipients of any such documentation or information keep the same confidential (except that, in the case of a public securitization, information may be disclosed to the extent required by federal securities laws), Lender may disseminate to any actual or potential purchasers, assignees or participants (and to any investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable sale, assignment, participation, securitization, or other secondary market transaction) all documents and financial and other information then possessed by or known to Lender with respect to: (a) the Property and its operation; and (b) Borrower, any constituent partner or member of Borrower, any guarantor and any non-borrower trustor. Borrower shall (at Lender’s sole cost and expense), within fifteen (15) days after request by Lender; (a) deliver to Lender such information and documents relating to Borrower, the Property and its operation and any party connected with the Loan as Lender or any Rating Agency may reasonably request; (b) deliver to Lender an estoppel certificate for the benefit of Lender and any other party designated by Lender verifying the status and terms of the Loan, in form and content reasonably satisfactory to Lender; (c) enter into such amendments to the Loan Documents as may be requested in order to facilitate any such sale, assignment, participation, securitization, or other secondary market transaction, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents; (d) enter into such amendments to the organizational documents of Borrower as Lender or any Rating Agency may reasonably request to preserve or enhance Borrower’s special-purpose bankruptcy-remote status; and (e) provide opinions of counsel, which may be relied on by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware and federal bankruptcy law relating to Delaware limited liability companies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies, including a 10b-5 opinion, with respect to the Loan, the Property, the Borrower and Guarantor, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies. All of the foregoing shall be at no cost to Borrower provided no Default is continuing. Lender hereby agrees that any sale or participation (other than a Securitization) of all or any part of the Loan shall be made only to a Qualified Transferee.

 

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16.13 LENDER’S AGENTS .

Lender may designate an agent or independent contractor to exercise any of Lender’s rights under this Agreement and any of the other Loan Documents. Any reference to Lender in any of the Loan Documents shall include Lender’s agents, employees or independent contractors. Borrower shall pay the actual, reasonable costs of such agent or independent contractor either directly to such Person or to Lender in reimbursement of such costs, as applicable.

 

16.14 AUTHORIZATION TO FILE FINANCING STATEMENTS .

Borrower hereby authorizes Lender to file at any time on or after the date hereof, appropriate uniform commercial code financing statements in such jurisdictions and offices as Lender deems necessary or appropriate in connection with the anticipated perfection of a security interest in any and all personal property part of the Collateral as same relate to the Property. If for any reason the Loan is not consummated or upon Borrower’s payment in full of the Loan, Lender will cause the termination of such financing statements upon Lender’s receipt of written request from Borrower.

 

16.15 TAX SERVICE .

Lender is authorized to secure a tax service contract with a third party vendor which shall provide tax information on the Property satisfactory to Lender. Borrower shall pay any reasonable fees associated with procuring such tax service contract in connection with the closing of the Loan, but not in connection with any subsequent tax service contracts obtained by Lender.

 

16.16 ADVERTISING .

In connection with the Loan, Borrower hereby agrees that Lender and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details may include the name of the Property, address of the Property, the Loan amount, the date of the closing and a description of the size/location of the Property. Subject to the prior approval of Lender (except in the case of disclosures required under applicable laws or regulations), Lender hereby agrees that Borrower and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details disclosed by Borrower may include only the name of the Property, address of the Property, the Loan amount (but not the Note Rate), the date of the closing and a description of the size/location of the Property.

 

16.17 COMMERCIAL LOAN .

Borrower warrants that the Loan evidenced by this Agreement, the Note and the other Loan Documents is being made solely to acquire or carry on a business or commercial enterprise, and/or Borrower is a business or commercial organization. Borrower further warrants that all of the proceeds of this Agreement, the Note and the other Loan Documents shall be used for commercial purposes and stipulates that the Loan evidenced by this Agreement, the Note and the other Loan Documents shall be construed for all purposes as a commercial loan, and is made for other than personal, family or household purposes.

 

16.18 DISBURSEMENT OF LOAN PROCEEDS; LIMITATION OF LIABILITY .

Borrower authorizes Lender to disburse the proceeds of the Loan, after deducting any and all fees owed by Borrower to Lender in connection with the Loan, to the Title Company. With respect to such disbursement, Borrower understands and agrees that Lender does not accept responsibility for errors, acts

 

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or omissions of others, including, without limitation, the escrow company, other banks, communications carriers or clearinghouses through which the transfer of Loan proceeds may be made or through which Lender receives or transmits information, and no such entity shall be deemed Lender’s agent. As a consequence, Lender shall not be liable to Borrower for any actual (whether direct or indirect), consequential or punitive damages which may arise with respect to the disbursement of Loan proceeds (other than as a result of the gross negligence or willful misconduct of Lender), whether or not (a) any claim for such damages is based on tort or contract, or (b) either Lender or Borrower knew or should have known of the likelihood of such damages in any situation.

 

16.19 SEVERABILITY .

If any provision or obligation under this Agreement and the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of the Loan Documents, provided, however, that if the rate of interest or any other amount payable under the Note or this Agreement or any other Loan Document, or the right of collectability therefor, are declared to be or become invalid, illegal or unenforceable, Lender’s obligations to make advances under the Loan Documents shall not be enforceable by Borrower.

 

16.20 INTENTIONALLY OMITTED .

 

16.21 HEADINGS .

All article, section or other headings appearing in this Agreement and any of the other Loan Documents are for convenience of reference only and shall be disregarded in construing this Agreement and any of the other Loan Documents.

 

16.22 SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY .

If Borrower consists of more than one Person, the obligations and liabilities of each such Person hereunder shall be joint and several. Except as otherwise expressly provided under the terms and conditions of this Agreement, the terms, covenants, and conditions contained herein and in the other Loan Documents shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto and thereto.

 

16.23 GOVERNING LAW; JURISDICTION .

 

  (a)

THIS AGREEMENT AND THE LOAN, AS A WHOLE, WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LENDERS HAVE SUBSTANTIAL BUSINESS OPERATIONS IN THE STATE OF NEW YORK AND THE LOAN DOCUMENTS WERE EXECUTED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE PROPERTY IS LOCATED, IT BEING UNDERSTOOD

 

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THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

  (b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH OF LENDER AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:

 

National Registered Agents, Inc.
160 Greentree Drive
Suite 101
Dover, Delaware 19904

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

 

16.24 WAIVER OF RIGHT TO TRIAL BY JURY .

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN

 

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CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.

 

16.25 INTEGRATION; INTERPRETATION .

The Loan Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein and supersede all prior negotiations or agreements, written or oral. The Loan Documents shall not be modified, except by written instrument executed by all parties. Any reference to the Loan Documents includes any amendments, renewals or extensions now or hereafter approved by the parties hereto in writing.

 

16.26 COUNTERPARTS .

To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document.

 

16.27 AMENDMENTS .

Notwithstanding any provision of any other Loan Document (including without limitation the Note), in no event can any Loan Document be amended, extended, supplemented or otherwise modified, in whole or in part, except pursuant to a written agreement executed by Lender and any other party who has executed such Loan Document.

 

16.28 CONSENTS AND APPROVALS; CONSTRUCTION .

Wherever Lender’s consent, approval, acceptance or satisfaction is required under any provision of this Agreement or any of the other Loan Documents, such consent, approval, acceptance or satisfaction shall be in Lender’s sole discretion except as may be otherwise expressly and specifically provided herein.

 

16.29 BRING DOWN OF REPRESENTATIONS; SURVIVAL OF WARRANTIES; CUMULATIVE .

Borrower hereby covenants and agrees to execute and deliver, at such time and from time to time, as required by Lender, such agreements, documents, instruments, estoppels, consents or certificates as Lender may, from time to time, reasonably request, including certificates reaffirming the representations and covenants of Borrower hereunder as if made on the date of any such reaffirmation. All representations and warranties contained in this Agreement and in any of the other Loan Documents shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of such compliance certificate (subject to the terms of Section 5.1(w) hereof), and each additional borrowing or other credit accommodation hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender.

 

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16.30 INTENTIONALLY OMITTED .

 

16.31 INTENTIONALLY OMITTED .

 

16.32 INTENTIONALLY OMITTED .

 

16.33 EXHIBITS; SCHEDULES .

All exhibits and schedules attached hereto and listed in the Table of Contents are fully incorporated herein by reference for all purposes.

 

16.34 CONFLICT .

In the event of any conflict between this Agreement and any of the other Loan Documents, the terms of this Agreement shall govern.

 

16.35 SECURITIZATION INDEMNIFICATION .

 

  (a) Borrower understands that information provided to Lender by Borrower and its agents, counsel and representatives may be included in disclosure documents in connection with a securitization of the Loan (the “ Securitization ”), including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “ Disclosure Document ”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”), or the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”), and may be made available to investors or prospective investors in the certificates, notes or other securities issued in connection with the Securitization, the Rating Agencies, and service providers relating to the Securitization.

 

  (b)

Upon Lender’s request, Borrower shall provide in connection with each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has examined such specific sections of the Disclosure Documents specified in writing by Lender, as specifically relating to Borrower, Borrower Affiliates, the Property, Manager, Guarantor and other aspects of the Loan (the “ Specific Sections ”), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 16.35 , Lender hereunder shall include its officers and directors), and any Affiliates of Lender that have filed the registration statement relating to the Securitization (the “ Registration Statement ”), each of its directors, each of its officers who have signed the Registration Statement and each Person that controls the Affiliate of Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “ Lender Group ”), and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “ Underwriter Group ”) for any losses, claims, damages or liabilities (collectively, the “ Liabilities ”) to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in the Specified Sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such Specified Sections in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above and under Section 16.35(c) below only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission

 

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made in the Specified Sections in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, and operating statements and rent rolls with respect to the Property provided by Borrower. The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have.

 

  (c) In connection with Exchange Act Filings, Borrower shall (subject to the proviso in Section 16.35(b)(ii)(C)) (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Specified Sections of the Disclosure Document a material fact required to be stated in the Specified Sections of the Disclosure Document in order to make the statements in the Specified Sections of the Disclosure Document, in light of the circumstances under which they were made, not misleading and (ii) reimburse Lender, the Lender Group or the Underwriter Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by Lender, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.

 

  (d) Promptly after receipt by an indemnified party under this Section 16.35 of notice of a claim and/or the commencement of any action relating to an indemnified Liability, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 16.35 , notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any claim or action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 16.35 , such indemnified party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party(ies) shall not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.

 

  (e)

In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 16.35(b) or (c)  hereof is for any reason held to be unenforceable as to an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 16.35(b) or (c)  hereof, the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be

 

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considered: (i) Lenders’ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.

 

  (f) The liabilities and obligations of both Borrower and Lender under this Section 16.35 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.

 

  (g) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in such Securitization or (ii) the financial statements described in Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or apportion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within thirty (30) days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than sixty (60) days after the end of each fiscal quarter of Borrower and (C) not later than one hundred twenty (120) Business Days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which an Exchange Act Filing is not required. If reasonably requested by Lender, and to the extent available to Borrower and not prohibited by any applicable lease, other agreement or order, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.

 

  (h)

All financial data and financial statements provided by Borrower hereunder pursuant to Sections 16.35(g) and (h)  hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All annual financial statements referred to in Section 16.35(g) above shall be audited by independent accountants of Borrower (which accountants shall be acceptable to Lender) in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are

 

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required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under Section 16.35(g) shall be accompanied by an Officer’s Certificate stating that such financial statements meet the requirements set forth in the first sentence of this Section 16.35(h) .

 

  (i) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing.

 

  (j) In the event Lender reasonably determines, in connection with a Securitization, that the financial data and financial statements and (if applicable) related accountants’ reports and consents required in order to comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 16.35(g) and (h) , Lender may request, and Borrower shall promptly provide, such other financial statements and (if applicable) related accountants’ reports and consents as Lender reasonably determines to be necessary or appropriate for such compliance with applicable law.

 

16.36 BORROWER WAIVERS .

With respect to any waivers given by Borrower under this Agreement and other Loan Documents, Borrower acknowledges that: (a) the obligations undertaken by Borrower under and pursuant to this Agreement and the Loan Documents are complex in nature, (b) Borrower’s waivers variously involve rights that may otherwise be available to Borrower or for its benefit, (c) as part of Lender’s consideration for entering into this transaction, Lender has specifically bargained for Borrower’s waivers and the relinquishment by Borrower of those rights so waived, and (d) Borrower has had the opportunity to seek and receive legal advice from skilled legal counsel in the area of financial transactions of the type reflected in this Agreement and the Loan Documents. Based on the foregoing facts, Borrower represents and confirms to Lender that Borrower is fully informed regarding, and that Borrower does thoroughly understand the following: (i) the nature of its waivers and rights it has waived, (ii) the circumstances under which those rights may arise, (iii) the benefits which those rights might otherwise confer upon Borrower, and (iv) the legal consequences to Borrower of waiving those rights. Borrower acknowledges that Borrower has entered into this Agreement and the other Loan Documents and both undertaken Borrower’s obligations hereunder and thereunder and given its waivers with the intent that all such waivers shall be fully enforceable by Lender, and that Lender has been induced to enter into this transaction in material reliance upon the presumed full enforceability thereof.

 

16.37 REMEDIES OF BORROWER .

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where, by applicable law or under this Agreement, the Mortgage, the Note and the other Loan Documents, Lender or such agent, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

 

16.38 MULTIPLE BORROWERS .

The parties hereto acknowledge that the defined term “ Borrower ” (as well as the defined term defining each other Collective Group) has been defined to collectively include each individual Borrower (and in the case of each Collective Group, defined to collectively include each member of the same). It is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred, (b)

 

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there has occurred a Default, or (c) an event has occurred which would create recourse obligations under this Agreement, that any such breach, occurrence or event with respect to any Borrower (or with respect to any single member of a Collective Group) shall be deemed to be such a breach, occurrence or event with respect to all Borrowers (and in the case of each Collective Group, each member of the same) and that all Borrowers need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Borrower (and likewise that each member of a Collective Group need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to such Collective Group). The term “ Collective Group ” as used in this Agreement shall refer to each of the groups of entities represented in this Agreement by the following defined terms: Borrower and Guarantor. The obligations and liabilities of each Borrower shall be joint and several as more further set forth in a contribution agreement entered into in connection with the Loan.

 

16.39 CO-LENDERS .

 

  (a) Borrower hereby acknowledges and agrees that notwithstanding the fact that the Loan may be serviced by a servicer, prior to a Securitization of the Loan, all requests for approval and consents hereunder and in every instance in which Lender’s consent or approval is required, all requests for approval and all copies of documents, reports, requests and other delivery obligations of Borrower required hereunder shall be delivered by Borrower to an agent appointed by the Co-Lenders.

 

  (b) Following the closing of the Loan (i) the liabilities of Lender shall be several and not joint, (ii) no Co-Lender shall be responsible for the obligations of the other Co-Lender, and (iii) each Co-Lender shall be liable to Borrower only for their respective share of the Loan. Notwithstanding anything to the contrary herein, all indemnities by Borrower and obligations for principal and interest payments, payment of prepayment fees, exits fees, default interest or any other amounts due hereunder, including costs, expenses, damages or advances each as set forth herein shall run to and benefit each Co-Lender in accordance with its share of the Loan.

 

  (c) Each Co-Lender agrees that it has, independently and without reliance on the other Co-Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of Borrower and their Affiliates and decision to enter into this Agreement and that it will, independently and without reliance upon the other Co-Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement or under any other Loan Document.

 

  (d) In connection with any consent or approval under the Loan Documents, or any other circumstance in which “Lender” has the right to take an action and obtain reimbursement therefor from Borrower or any Affiliate of Borrower under the Loan Documents, each Co-Lender agrees that the Co-Lenders shall designate one Co-Lender or one Servicer to act as the agent for all Co-Lenders for all dealings with Borrower under the Loan Documents. The initial agent so appointed by the Co-Lenders shall be Wells Fargo Bank, National Association. Borrower shall be entitled to rely on any written consent, approval, notice of Default, any other notices given or statements made or received by or from such agent pursuant to the Loan Documents believed by Borrower to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents without the necessity of confirming the same with the Co-Lenders. Wells Fargo Bank, National Association shall remain the agent for the Co-Lenders hereunder until a servicer has been appointed to administer the Loan, or a replacement agent has been appointed with the prior written consent of Borrower, which consent shall not be unreasonably withheld, conditioned or delayed.

[The remainder of this page intentionally left blank]

 

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THIS AGREEMENT IS EXECUTED by Lender and Borrower as of the date appearing on the first page hereof.

 

LENDER :

   
WELLS FARGO BANK, NATIONAL ASSOCIATION     Lender’s Address:
       

WELLS FARGO BANK, NATIONAL ASSOCIATION

Loan Administration

Wells Fargo Center

Commercial Mortgage Servicing

1901 Harrison Street, 2 nd Floor

Mac A0227-020

Oakland, California 94612

Attention: Commercial Mortgage Servicing

Loan No.: 31-0909757

By:

 

/s/ ROBERT ROSENBERG

   
  Name:  

Robert Rosenberg

   
  Title:  

Managing Director

   
       
       
       
       
       
        with a copy to counsel:
       

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.

       

LENDER :

   

BANK OF AMERICA, N.A.

    Lender’s Address:
        BANK OF AMERICA, N.A.

By:

 

/s/ DAVID FALLICK

   

c/o Banc of America Securities LLC

NC1-027-20-03

214 North Tryon Street

Charlotte, North Carolina 28255

Attention: Steven Wasser

Facsimile: (704) 602-3726

Loan No.: 31-0909757

 

with a copy to counsel:

 

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.

  Name:  

David Fallick

   
  Title:  

Managing Director

   
       
       
       
       
       
       
       
       

[Signatures continue on the following page]


THIS AGREEMENT IS EXECUTED by Lender and Borrower as of the date appearing on the first page hereof.

 

BORROWER :      Borrower’s Address:

[BORROWER NAME]

a [STATE OF FORMATION] [ENTITY TYPE]

     c/o Dividend Capital Total Realty

 

     Operating Partnership LP

a

 

 

     518 17th Street, Suite 1700
         Denver, Colorado 80202
        

By:

 

/s/ GREG MORAN

    

with a copy to counsel:

 

Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166

Attention: Robert J. Ivanhoe, Esq.

  Name:  

Greg Moran

    
  Title:  

SVP

    
        
        


 

Schedule 16.32 - Page 1


EXHIBIT A

DEFINITIONS

As used in this Agreement and the other Loan Documents, the following terms shall have the respective meanings set forth below.

30/360 Basis ” – means on the basis of a 360-day year consisting of twelve (12) months of thirty (30) days each.

Acceptable Delaware LLC ” – means a limited liability company formed under Delaware law which (i) has at least one springing member which, upon the occurrence of an event that causes the last remaining member to cease to be a member, shall immediately become the sole member of such limited liability company, and (ii) otherwise meets the Rating Agency criteria then applicable to such entities.

Act ” – means the limited liability company act of the State of Delaware.

Acts of Terror ” – has the meaning ascribed to such term in Section 12.5 hereof.

Actual/360 Basis ” – means on the basis of a 360-day year and charged on the basis of actual days elapsed for any whole or partial month in which interest is being calculated.

Adjusted Actual Net Operating Income ” – means projected annualized Net Operating Income over the twelve (12) month period subsequent to the date of calculation, adjusted as follows: (i) including in the calculation of Operating Expenses any non-reimbursable Operating Expenses, including expenses of any Property that is not leased for the portion thereof; (ii) excluding from the calculation of Operating Income any rents from any tenant under any Lease at the Property that has elected not to renew its Lease; and (iii) in the calculation of Operating Income, reduces the rents included in such calculation of any tenant under any Lease at the Property that has renewed its Lease at less rent than in its current Lease, notwithstanding that such rent reduction may not take effect until the renewal term of the Lease.

Affiliate ” – means, as to any specified Person, (a) any Person that directly or indirectly through one or more intermediaries Controls or is Controlled by or is under common Control with such Person, (b) any Person owning or Controlling forty-nine percent (49%) or more of the outstanding voting securities of or other ownership interests in such Person, (c) if such Person is an individual, any entity for which such Person directly or indirectly acts as an officer, director, partner, owner employee or member, (d) any entity in which such Person (together with the members of his family if the Person in question is an individual) owns, directly or indirectly through one or more intermediaries an interest in any class of stock (or other beneficial interest in such entity) of forty-nine percent (49%) or more, or (e) with respect to any Obligor, any other Obligor.

Affiliate Transferee ” – has the meaning ascribed to such term in Section 15.1(c)(ii)(C) hereof.

Agreement ” – has the meaning ascribed to such term in the preamble hereto.

Allocated Loan Amount ” – means that portion of the original principal balance of the Loan which has been allocated to each Individual Property, as reduced from time to time in accordance with this Agreement, pursuant to scheduled principal amortization or otherwise.

Alteration Threshold ” – means an amount equal to $3,000,000.

Amended Note ” – means an amendment and restatement of the Note.

Amortization Period ” – means thirty (30) years.

 

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Annual Budget ” – means an operating and capital budget for the Property setting forth Borrower’s good faith estimate of projected operating expenses and capital expenditures for each calendar year, including, without limitation, those for maintenance, repairs, annual taxes, insurance, utilities and other annual expenses that are standard and customary for properties similar to the Property.

Approved Annual Budget ” – has the meaning ascribed to such term in Section 8.1(d) hereof.

Approved Independent Manager Provider ” – means each of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company and Lord Securities Corporation; provided, that, (a) the foregoing shall only be deemed Approved Independent Manager Providers to the extent acceptable to the Rating Agencies and (b) additional national providers of professional Independent Managers may be deemed added to the foregoing hereunder to the extent approved in writing by Lender and the Rating Agencies.

Automatic Default ” – has the meaning ascribed to such term in Section 9.1(b) hereof.

Bankruptcy Code ” – means the Bankruptcy Reform Act of 1978 (11 U.S.C. § 101-1330) as now or hereafter amended or recodified, and any other existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or similar law, rule or regulation for the relief of debtors.

Borrower ” – has the meaning ascribed to such term in the preamble hereto.

Business Day ” – means a day of the week (but not a Saturday or Sunday) on which banking institutions located in California are not required or authorized by law or other governmental action to close. Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.

Capital Expenditures ” – means major repairs and replacements to maintain or improve the Property, including, without limitation, structural repairs, roof replacements, HVAC repairs and replacements, mechanical and plumbing repairs and replacements and boiler repair and replacements.

Capital Expenditures Impound ” – has the meaning ascribed to such term in Section 4.4.4(c) of Exhibit E attached hereto.

Cash Management Agreement ” – means that certain Cash Management Agreement executed of even date herewith by Borrower, Lender and Depository, pursuant to the terms of Section 4.4 hereof.

Casualty ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

Casualty Policy ” – has the meaning ascribed to such term in Section 12.1(a) hereof.

Casualty Retainage ” – has the meaning ascribed to such term in Section 12.9(b) hereof.

Closing Date Debt Yield ” – means (i) 18.2% or (ii) in the event the Earn-Out Advance shall have been made, 16.4%.

Code ” – means the Internal Revenue Code of 1986, as amended, and as may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

Co- Lender ” – has the meaning ascribed to such term in the preamble hereto.

Collateral ” – has the meaning ascribed to such term in the Mortgage.

 

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Collective Group ” – has the meaning ascribed to such term in Section 16.38 hereof.

Condemnation Proceeds ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

Constituent Members ” – has the meaning ascribed to such term in Section 5.2(g) hereof.

Control ” or “ Controlling ” – means, with respect to any Person, either (i) ownership, directly or indirectly, of forty-nine percent (49%) or more of all equity interests in such Person, or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise.

Corporate Special Member ” – has the meaning ascribed to such term in Section 5.2(h) hereof.

Cost Breakdown ” – has the meaning as ascribed to such term in Section 4.4.1 of Exhibit E attached hereto.

Costs and Expenses ” – has the meaning ascribed to such term in Section 7.1 hereof.

Creditors Rights Laws ” – has the meaning ascribed to such term in Section 5.2(h) hereof .

Debt ” – means the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement or the other Loan Documents, and the payment of all sums advanced and reasonable costs and expenses incurred by Lender in accordance with the terms of this Agreement in connection with the enforcement and/or collection of the Debt or any part thereof.

Debtor Relief Law ” – has the meaning ascribed to such term in Section 9.1(b)(i) hereof .

Debt Service ” – means, for any period, the aggregate of all principal, interest payments and all other amounts that accrue or are due and payable in accordance with the Loan Documents during such period.

Debt Yield ” – means as of the last day of the calendar month immediately preceding the applicable date of determination, the quotient obtained by dividing (1) the Adjusted Actual Net Operating Income by (2) the outstanding principal balance of the Loan.

Default ” – has the meaning ascribed to such term in Section 9.1 hereof.

Default Rate ” – means the lesser of (a) a fixed annual rate equal to five percent (5%) plus the Note Rate, and (b) the maximum interest rate permitted by applicable law.

Defeasance ” – means Borrower’s substitution of Collateral and Lender’s release of the lien of the Mortgage upon satisfaction of all of the terms and conditions set forth in Article 11 .

Defeasance Collateral ” – means obligations or securities, not subject to prepayment, call or early redemption, each of which qualifies as a “Government security,” as defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended (15 U.S.C. §80a-1 et seq .) or any “agency security” approved by Lender in its reasonable discretion, together with all revenues and proceeds of such obligations or securities.

Defeasance Date ” – means the date upon which the Defeasance is completed.

Defeasance Option End Date ” – means April 30, 2020.

Defeasance Option Period ” – means the period from and including the Defeasance Option Start Date to and including the Defeasance Option End Date.

 

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Defeasance Option Start Date ” – means the earlier of (a) the twenty-fourth (24th) Due Date following the Startup Day of any REMIC which holds all or any part of the Loan or (b) the thirty-fifth (35th) Due Date following the First Due Date.

Defeasance Property ” – means any Individual Property or Properties that are released from the lien as a result of a Partial Defeasance.

Defeasance Security Agreements ” – means a pledge and security agreement and an account control agreement, each in form and substance customary in commercial mortgage defeasance transactions and, in case of Partial Defeasance, the New Note.

Deferred Maintenance ” – has the meaning ascribed to such term in Section 7.27 hereof.

Delinquency Date ” – has the meaning ascribed to such term in Section 4.1 hereof.

Deposit ” – has the meaning ascribed to such term in Section 7.4(f) hereof.

Depository ” – means Wells Fargo Bank, National Association under the Cash Management Agreement

Designated TI Impound ” – has the meaning ascribed to such term in Section 4.4.3(b) of Exhibit E attached hereto.

Disbursement Date ” – means the date upon which the Loan proceeds are funded by Lender into escrow in connection with the closing of the Loan.

Disclosure Document ” – has the meaning set forth in Section 16.35(a) hereof.

Due Date ” – means the first (1st) day of each calendar month during the period commencing on the First Due Date and ending on the first (1st) day of the month preceding the Maturity Date; provided , however , upon ten (10) days prior-written notice from Lender to Borrower, the Lender has the one-time right during the term of the Loan to change the Due Date, with a corresponding change to the period in which interest accrues.

Earn-Out Advance ” – has the meaning set forth in Section 2.1(b) hereof.

Earn-Out Disbursement Date ” – has the meaning set forth in Section 2.1(b) hereof.

Effective Date ” – means the earlier of (a) the date the Mortgage is recorded in the real property records of the jurisdiction where the Property is located or (b) the date Lender authorizes the release of the Loan proceeds to Borrower.

Eligibility Requirements ” means, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $600,000,000 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of $250,000,000 and (ii) is regularly engaged in the business of making or owning commercial real estate loans or operating commercial mortgage properties.

ERISA ” – has the meaning ascribed to such term in Section 5.1(i) hereof.

Exchange Act ” – has the meaning set forth in Section 16.35(a) hereof.

First Due Date ” – means the first (1 st ) day of the month following the Disbursement Date, or, if the Disbursement Date is the first (1 st ) day of the month, then the Disbursement Date.

First P&I Due Date ” – means August 1, 2010.

 

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Full Defeasance ” – means a Defeasance of the entire Property.

GE Loan Agreement ” – has the meaning ascribed to such term in Section 5.2(n)(xiii) hereof.

General TI Cap ” – has the meaning ascribed to such term in Section 4.4.1 of Exhibit E attached hereto.

General TI Deposit ” – has the meaning ascribed to such term in Section 4.4.3(a) of Exhibit E attached hereto.

General TI Impound ” – has the meaning ascribed to such term in Section 4.4.3(a) of Exhibit E attached hereto.

Governmental Authority ” or “ Governmental Authorities ” – means any national, federal, state, regional or local government, or any other political subdivision of any of the foregoing, in each case with jurisdiction over Borrower, the Property, or any Person with jurisdiction over Borrower or the Property exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

GP SPE Party ” has the meaning ascribed to such term in Section 5.2(e) hereof.

Gross Income ” – has the meaning ascribed to such term in the Cash Management Agreement.

Guarantor ” – means Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership.

Guaranty ” – means that certain Limited Guaranty of even date herewith executed and delivered by Guarantor to Lender.

Hazardous Materials ” – has the meaning ascribed to such term in the Hazardous Materials Indemnity Agreement.

Hazardous Materials Indemnity Agreement ” – means that certain Hazardous Materials Indemnity Agreement of even date herewith, executed by Borrower and Guarantor in favor of Lender.

Hazardous Materials Laws ” – has the meaning ascribed to such term in the Hazardous Materials Indemnity Agreement.

Holdco ” – means TRT NOIP Fixed Real Estate Holdco LLC, a Delaware limited liability company.

Impound ” and “ Impounds ” – as used herein and in the other Loan Documents has the meaning ascribed to such term in Section 4.5 hereof.

Improvements ” – has the meaning ascribed to such term in the Mortgage.

Indemnitee ” – has the meaning ascribed to such term in Section 13.1 hereof.

Independent Manager ” – means an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Managers, another nationally-recognized company reasonably approved by Lender, in each case that is not an Affiliate of Holdco and that provides professional Independent Managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following:

(a) a member, partner, equityholder, manager, director, officer or employee of Holdco or any of its equityholders or Affiliates (other than as an Independent Manager of Holdco an Affiliate of Holdco that is not in the direct chain of ownership of Holdco and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Manager is employed by a company that routinely provides professional Independent Managers or managers in the ordinary course of its business);

 

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(b) a creditor, supplier or service provider (including provider of professional services) to Holdco or any of its equityholders or Affiliates (other than a nationally-recognized company that routinely provides professional Independent Managers and other corporate services to Holdco or any of its Affiliates in the ordinary course of its business);

(c) a family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or

(d) a Person that controls (whether directly, indirectly or otherwise) any of (a), (b) or (c) above.

A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (a) by reason of being the Independent Manager of a “special purpose entity” affiliated with Holdco shall be qualified to serve as an Independent Manager of Holdco, provided that the fees that such individual earns from serving as an Independent Manager of affiliates of Holdco in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year.

Individual Property ” – means each Property identified as such on Exhibit F hereto.

Insurance Expiration Date ” – has the meaning ascribed to such term in Section 4.2 hereof.

Insurance Impound ” – has the meaning ascribed to such term in Section 4.2 hereof.

Insurance Premiums ” – has the meaning ascribed to such term in Section 4.2 hereof.

Insurance Proceeds ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

Interest Holder ” – has the meaning ascribed to such term in Section 15.1(c)(ii)(A) hereof.

Intermediate Holdco ” – means, collectively, TRT NOIP Fixed CA LP Holdco LLC, a Delaware limited liability company, TRT NOIP CEVA Lease Holdco LLC, a Delaware limited liability company, TRT NOIP Connection - Irving LP LLC, a Delaware limited liability company, TRT NOIP Glenville - Richardson LP LLC, a Delaware limited liability company and TRT NOIP Sunset Hills - Reston LLC, a Delaware limited liability company.

Late Charge ” – has the meaning ascribed to such term in Section 2.3(a) hereof.

Lease ” and “ Leases ” – mean any and all present and future leases of the Property or any portion thereof, and all licenses and all other agreements of any kind relating to the use or occupancy of the Property or any portion thereof.

Lease Documents ” – has the meaning ascribed to such term in Section 7.4(f) hereof.

Lease Payment Event ” – has the meaning ascribed to such term in Section 7.4(c) hereof.

Leasing Costs ” – has the meaning ascribed to such term in Section 4.4.3 of Exhibit E attached hereto.

Lender ” – has the meaning ascribed to such term in the preamble hereto, or any successors in interest thereto.

 

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Lender Group ” – has the meaning set forth in Section 16.35(b) hereof.

Letter of Credit Assignment ” – has the meaning ascribed to such term in Section 7.4(g) hereof.

Liabilities ” – has the meaning set forth in Section 16.35(b) hereof.

Liability Policy ” – has the meaning ascribed to such term in Section 12.1(c) hereof.

LLC Agreement ” – has the meaning ascribed to such term in Section 5.2(h) hereof.

Loan ” – means the principal sum that Lender agrees to lend and Borrower agrees to borrow, pursuant to the terms and conditions of this Agreement.

Loan Documents ” – means those documents, as hereafter amended, supplemented, replaced or modified, properly executed and in recordable form, if necessary, listed and identified on Exhibit C attached hereto.

Lockbox Agreement ” shall mean that certain Blocked Account Control Agreement, or similar replacement account control agreement reasonably approved by Lender, by and among Borrower, Lockbox Bank and Lender.

Lockbox Bank ” shall mean U.S. Bank National Association or any replacement bank reasonably approved by Lender under a Lockbox Agreement.

Losses ” – has the meaning ascribed to such term in Section 3.1(b) hereof.

Major Lease ” – has the meaning ascribed to such term in Section 7.4(b) hereof.

Manager ” – means the property manager approved by Lender in accordance with the terms of the Loan Documents.

Managing Entity ” – has the meaning ascribed to such term in Section 5.1(a) hereof.

Material Action(s) ” – means to file any insolvency, or reorganization case or proceeding, to institute proceedings to have the Borrower or SPE Party be adjudicated bankrupt or insolvent, to institute proceedings under any applicable insolvency law, to seek any relief under any law relating to relief from debts or the protection of debtors, to consent to the filing or institution of bankruptcy or insolvency proceedings against the Borrower or SPE Party, to file a petition seeking, or consent to, reorganization or relief with respect to the Borrower or SPE Party under any applicable federal or state law relating to bankruptcy or insolvency, to seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official of or for the Borrower or SPE Party or a substantial part of its property, to make any assignment for the benefit of creditors of the Borrower SPE Party, to admit in writing the Borrower’s or SPE Party’s inability to pay its debts generally as they become due, or to take action in furtherance of any of the foregoing.

Material Adverse Effect ” – means a material adverse effect upon (i) the business or financial position or results of operation of Borrower, (ii) the ability of Borrower to perform, or of Lender to enforce, any of the Loan Documents, (iii) the Property or the value thereof, or (iv) the ability of the Guarantor to perform under the Guaranty.

Material Contract ” – means (i) any management agreement for the Property or (ii) any contract or other agreement relating to the operating, maintenance or construction of any Property which is in excess of $1,000,000.

Maturity Date ” – means July 1, 2020.

 

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Member ” – has the meaning ascribed to such term in Section 5.2(k) hereof.

Mezzanine Borrower ” – means TRT NOIP Fixed Mezz Holdco LLC, a Delaware limited liability company.

Mezzanine Lender ” – means iStar Financial Inc. and its successors and permitted assigns.

Mezzanine Loan ” – means (1) that certain mezzanine loan in the original principal amount of $39,438,205 (as may be increased to $57,870,000.00 upon the Earn-Out Advance) made on the date hereof from Mezzanine Lender to Mezzanine Borrower or (2) any New Mezzanine Loan.

Mezzanine Loan Agreement ” – means that certain Loan Agreement evidencing the Mezzanine Loan entered into by Mezzanine Lender and Mezzanine Borrower.

Mezzanine Loan Documents ” – means those loan documents entered into by Mezzanine Borrower in connection with a Mezzanine Loan.

Mezzanine Pledge Agreement ” – means any pledge agreement securing a Mezzanine Loan.

Moody’s ” – means Moody’s Investor Service, Inc.

Mortgage ” – means, as applicable and whether one or more, that certain Mortgage and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing), Deed of Trust and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing), or Deed to Secure Debt and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing), executed by Borrower in favor of Lender, granting to Lender security interests in the Property as security for the Loan.

Mortgagor ” – means the grantor, trustor, mortgagor, or borrower, as applicable, granting or conveying the liens under the Mortgage.

Net Operating Income ” – means Operating Income less Operating Expenses.

Net Restoration Proceeds ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

New Mezzanine Intercreditor ” – has the meaning ascribed to such term in Section 15.2(f) hereof.

New Mezzanine Lender ” – has the meaning ascribed to such term in Section 15.2(e) hereof.

New Mezzanine Loan ” – has the meaning ascribed to such term in Section 15.2 hereof.

New Note ” – means a new promissory note in a principal amount equal to (x) the Release Price in the case of a Partial Defeasance or (y) the difference between (i) the Allocated Loan Amount applicable to the Northrop VA Property and (ii) fifteen percent (15%) of the outstanding principal balance of the Loan or (z) the amount necessary to cure a Cash Trap Event Period.

Non- Holdco Member ” – has the meaning ascribed to such term in Section 5.2(h) hereof.

Non-Consolidation Opinion ” – has the meaning ascribed to such term in Section 5.2(f) hereof.

Northrop TI Cap ” – has the meaning ascribed to such term in Section 4.4.1 of Exhibit E attached hereto.

Northrop VA ” – means Northrop Grumman Systems Corporation, as tenant at the Northrop VA Property.

Northrop VA Borrower ” – has the meaning set forth in Section 2.1(b) hereof.

 

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Northrop VA Event ” – means the failure of Northrop VA to renew its Lease on or before the latest notice date permitted pursuant to the Northrop VA Lease.

Northrop VA Lease ” – means that certain Deed of Lease dated July 27, 1999, by and between Northrop VA Borrower, successor-in-interest to 7555-7575 Colshire Drive LLC, successor-in-interest to WestGroup Properties LLC, as landlord, and Northrop Grumman Information Technology, Inc., successor-in-interest to PRC Inc., as tenant, as amended by First Amendment to the Deed of Lease dated July 27, 1999, as further amended by the Second Amendment to the Deed of Lease dated March 30, 2001, as further amended by the Third Amendment to the Deed of Lease dated April 30, 2002, as modified by the Assignment and Assumption dated May 14, 2002, as further modified by Letter regarding landlord ownership dated May 21, 2003, as supplemented by the Guaranty dated July 23, 1999, as further supplemented by that certain Commencement Notice dated June 5, 2001, and as further supplemented by the Northrop Grumman Corporation Payment and Performance Guaranty dated April 25, 2002.

Northrop VA Property ” – means the Property located at 7555 Colshire Drive, McLean, Virginia.

Note ” – means that certain Promissory Note (Secured) of even date herewith, in the original principal amount of the Loan, executed by Borrower and payable to the order of Lender, or the Amended Note, as applicable, as the same may be hereafter amended, restated, supplemented, replaced, extended or otherwise modified from time to time.

Note Rate ” – means a fixed annual rate of 5.455%.

Obligor ” – means any of Borrower or Guarantor.

Open Period Start Date ” – means May 1, 2020.

Officer’s Certificate ” – means a certificate delivered to Lender by Borrower which is signed by a Responsible Officer of Borrower.

Operating Expenses ” – means all expenses, computed in accordance with generally accepted accounting principles or other sound and prudent accounting principles approved by Lender, of whatever kind and from whatever source, relating to the ownership, operation, repair, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including, without limitation (and without duplication), Taxes, Insurance Premiums, management fees payable under any Management Agreement, costs attributable to the ordinary operation, repair and maintenance of the systems for heating, ventilation and air conditioning, advertising expenses, license fees, utilities, payroll and related taxes, computer processing charges, operating equipment or other lease payments as approved by Lender, ground lease payments, bond assessments and other similar costs, in each instance, actually incurred by Borrower. Operating Expenses shall not include Debt Service, capital expenditures, extraordinary expenditures, tenant improvement costs, leasing commissions regardless of whether or not paid from escrows required by the Loan Documents, or other expenses which are paid from escrows required by the Loan Documents, any payment or expense for which Borrower was or is to be reimbursed from proceeds of the loan or insurance or by any third party, federal, state or local income taxes, any non-cash charges such as depreciation and amortization and reserves for bad debt (to the extent such amounts have otherwise been incorporated in the determination of Adjusted Actual Net Operating Income), and any item of expense otherwise includable in Operating Expenses which is paid directly by any tenant.

Operating Income ” – means all revenue, computed in accordance with generally accepted accounting principles or other sound and prudent accounting principles approved by Lender, derived from the ownership and operation of the Property from whatever source, including, without limitation, rental income reflected in a current rent roll pursuant to Leases which are in full force and effect (whether denominated as basic rent, additional rent, escalation payments, electrical payments or otherwise), common area maintenance recoveries, real estate tax recoveries, utility recoveries, other miscellaneous expense recoveries, other required pass-throughs, business interruption, rent loss or other similar insurance proceeds

 

A-9


and other miscellaneous income. Operating Income shall not include non-cash straight-line rent adjustments, non-cash amortization of market rents, Insurance Proceeds (other than proceeds of rent loss, business interruption or other similar insurance allocable to the applicable period), Condemnation Proceeds (other than Condemnation Proceeds arising from a temporary taking or the use and occupancy of all or part of the applicable Property allocable to the applicable period), proceeds of any financing, proceeds of any sale, exchange or transfer of the Property or any part thereof or interest therein, capital contributions or loans to Borrower or an Affiliate of Borrower, any item of income otherwise includable in Operating Income but paid directly by any tenant to a Person other than Borrower, any other extraordinary, non-recurring revenues, Payments paid by or on behalf of any tenant under a Lease which is the subject of any proceeding or action relating to its bankruptcy, reorganization or other arrangement pursuant to the Bankruptcy Code or any similar federal or state law or which has been adjudicated a bankrupt or insolvent unless such Lease has been affirmed by the trustee in such proceeding or action pursuant to a final, non-appealable order of a court of competent jurisdiction, Payments paid by or on behalf of any tenant under a Lease the demised premises of which are not occupied either by such tenant or by a sublessee thereof (unless, with the exception of Northrop VA (following the Earn-Out Advance), such tenant maintains a credit rating of BBB- or better), Payments paid by or on behalf of any tenant under a Lease in whole or partial consideration for the termination of any Lease, sales tax rebates from any Governmental Authority, sales, use and occupancy taxes on receipts required to be accounted for by Borrower to any Governmental Authority, refunds and uncollectible accounts, interest income from any source other than the Impounds required pursuant to this Agreement or the other Loan Documents, unforfeited security deposits, utility and other similar deposits, income from any Tenant that is in a monetary default beyond all notice and cure periods under its Lease or any disbursements to Borrower from the Impounds.

Optional Default ” – has the meaning ascribed to such term in Section 9.1(a) hereof.

P&I Payment Amount ” – means (i) One Million Forty-Five Thousand One Hundred Ninety-Two and 28/100 Dollars ($1,045,192.28) and (ii) in the event the Earn-Out Advance shall have been made, One Million Six Hundred Forty-Nine Thousand Seven Hundred Eight and 90/100 Dollars ($1,649,708.90), each based on the Note Rate and the Amortization Period as it applies to the Note, as such amount may be adjusted by an Amended Note.

Partial Defeasance ” – means a Defeasance of one or more (but less than all) Individual Properties.

Partial Release ” – means a partial release of the Mortgage with respect to any Individual Property in connection with a Partial Defeasance.

Patriot Act ” – has the meaning as set forth in Section 5.1(l) hereof, as the same may be amended, modified and/or supplemented from time to time, together any and all successor statutes and laws and any and all rules, regulations and orders promulgated pursuant thereto.

Payments ” – means payments in connection with the Leases as defined in the Mortgage.

Periodic Treasury Yield ” – has the meaning ascribed to such term in Section 10.2(a) .

Permitted Encumbrances ” – means, collectively, (a) the lien and security interests created by this Agreement and the other Loan Documents, (b) all liens, encumbrances and other matters disclosed in the title insurance policy delivered to Lender in connection with the Loan, (c) liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion.

Permitted Fund Manager ” means any Person that on the date of determination is (i) a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a bankruptcy proceeding.

 

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Person ” – means any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint- stock company, bank, trust, land trust, estate, association, joint stock company, unincorporated organization, any federal, state, county or municipal government (or any agency or political subdivision thereof), endowment fund or any other form of entity.

Plan ” – has the meaning ascribed to such term in Section 5.1(i) hereof.

Policies ” and “ Policy ” – have the respective meanings ascribed to such terms in Section 12.3 hereof.

Prepayment Lockout End Date ” – means the calendar day immediately preceding the Open Period Start Date.

Prepayment Lockout Period ” – means the period from and including the Effective Date to and including the Prepayment Lockout End Date.

Prohibited Equity Transfer ” – has the meaning ascribed to such term in Section 15.1(c)(i) hereof.

Prohibited Property Transfer ” – has the meaning ascribed to such term in Section 15.1(b)(i) hereof.

Property ” – means each individual property or all of that certain real property, as the context may require, described on Exhibit B attached hereto and incorporated herein for all purposes, together with all improvements thereon and other property as more particularly described in the Mortgage.

Qualified Manager ” – means (i) a nationally recognized and reputable property management company with at least five (5) years’ experience managing at least 500,000 square feet of properties similar in size and type to the Property, but not including the Property, (ii) a management company approved by Lender in its reasonable discretion and for which Lender shall have received written confirmation from the applicable Rating Agencies that such manager will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such manager succeeding the then currently existing manager, (iii) any management company which is an Affiliate of Borrower, (iv) the property managers set forth on Schedule A-10 attached hereto, which entities are the property managers under property management agreements which have been assumed by Borrower and/or (v) the tenants set forth on Schedule A-10 attached hereto, which tenants are self managing the applicable Property in connection with their respective Leases.

Qualified Transferee ” shall mean (a) Lender or any affiliate of Lender, (b) Dividend Capital Total Realty Trust, Inc., or (c) one or more of the following:

(i) a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such Person referred to in this clause (A)  satisfies the Eligibility Requirements;

(ii) an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (ii)  satisfies the Eligibility Requirements;

(iii) an institution substantially similar to any of the foregoing entities described in clauses (c)(i) or (c)(ii) that satisfies the Eligibility Requirements;

(iv) any entity Controlled by any of the entities described in clause (a) , clause (b)  or clauses (c)(i). (c)(iii) or (c)(vi) of this definition;

 

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(v) a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“ CDO ”) secured by or financing through an “owner trust” of, the New Mezzanine Loan (collectively, “ Securitization Vehicles ”), so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (c)(i) , (ii) , (iii)  or (iv)  of this definition; provided that the operative documents of the related Securitization Vehicle require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (c)(i) , (ii) , (iii)  or (iv)  of this definition and (2) if any of the relevant trustee, special servicer, manager fails to meet the requirements of this clause (v) , such Person must be replaced by a Person meeting the requirements of this clause (v)  within thirty (30) days;

(vi) an investment fund, limited liability company, limited partnership or general partnership (a “ Permitted Investment Fund ”) where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (c)(i) , (ii) , (iii)  or (iv)  of this definition acts as the general partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (c)(i) , (ii) , (iii)  or (iv)  of this definition; or

(vii) a Qualified Trustee or Person that is otherwise a Qualified Transferee, in each case, acting as trustee, administrative agent or collateral agent, for one or more Persons with respect to a revolving credit facility, bond, term loan or other financing (which may be in form of repurchase arrangements) with a committed or funded amount, as of the initial closing thereof, of at least $500,000,000.

Qualified Trustee ” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the Rating Agencies.

Rating Agency ” or “ Rating Agencies ” – means any one or more of Dominion Bond Rating Services, Inc., Fitch, Inc., Moody’s Investors Service, Inc., S&P, Realpoint, LLC and any other nationally-recognized statistical rating organization that is designated by Lender (and any successor to the foregoing); provided that the foregoing shall only be deemed to be included within the definition of “Rating Agencies” hereunder to the extent that the same have rated (or are reasonably anticipated by Lender to rate) the securities associated with the Securitization of the Loan.

REA ” – means, individually and/or collectively (as the context may require), each reciprocal easement, covenant, condition and restriction agreement or similar agreement affecting the Property, if any, as more particularly described on Schedule 5.1(v) attached hereto and any future reciprocal easement or similar agreement affecting the Property entered into in accordance with the applicable terms and conditions hereof.

Registration Statement ” – has the meaning set forth in Section 16.35(b) hereof.

Regulation AB ” shall mean Regulation AB under the Securities Act and the Exchange Act, as such Regulation may be amended from time to time.

Related Loan ” shall mean a loan made to an Affiliate of Borrower, or secured by a Related Property, that is included with the Loan (or a portion of the Loan) in a Securitization.

Related Party ” and “ Related Parties ” – have the meaning ascribed to such term in Section 5.2(n)(i) hereof.

 

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Related Property ” shall mean a parcel of real property, together with improvements thereon and personal property related thereto, that is “related”, within the meaning of the definition of Significant Obligor, to the Property.

Release Date ” – means the date upon which a Partial Release is completed.

Release Price ” – means the greater of (i) one hundred twenty percent (120%) of the Allocated Loan Amount and (ii) an amount that causes the Debt Yield after the Partial Release to be no less than (A) the Closing Date Debt Yield and (B) the Debt Yield immediately prior to such Partial Release.

Release Property ” – means the Individual Property or Properties subject to a Partial Release.

Release Request ” – means Borrower’s written request for a Partial Release.

Remainder Property ” – means any Individual Property or Properties that are not released from the lien of the Mortgage as a result of a Partial Defeasance.

REMIC ” – means a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.

Rent Roll ” – has the meaning ascribed to such term in Section 5.1(j) hereof.

Responsible Officer ” – means with respect to a Person, the chairman of the board, president, chief operating officer, chief financial officer, treasurer or vice president-finance of such Person or such other similar officer of such Person reasonably acceptable to Lender and appropriately authorized by the applicable Person in a manner reasonably acceptable to Lender.

Reston VA Borrower ” – has the meaning set forth in Section 5.2(n) hereof.

Restoration ” – has the meaning ascribed to such term in Section 12.8 hereof.

Restoration Proceeds ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

Restoration Proceeds Threshold ” – has the meaning ascribed to such term in Section 12.7(a) hereof.

Restricted Account ” – has the meaning ascribed to such term in the Cash Management Agreement.

Restricted Party ” – has the meaning ascribed to such term in Section 15.1(a) hereof.

S&P ” – means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

Secondary Market Transaction ” and “ Secondary Market Transactions ” – have the meaning ascribed to such terms in Section 16.12 hereof.

Secured Obligations ” – has the meaning ascribed to such term in the Mortgage.

Securities Act ” – has the meaning set forth in Section 16.35(a) hereof.

Securitization ” – has the meaning set forth in Section 16.35(a) hereof.

Security Documents ” – means, collectively, the Mortgage, the Guaranty and any and all other agreements, instruments, certificates and/or documents prepared or executed as security for the Note and this Agreement.

Separateness Provisions ” – has the meaning ascribed to such term in Section 5.2(c) hereof.

 

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Significant Obligor ” shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.

SPE Party ” – means GP SPE Party, Intermediate Holdco and Holdco, as applicable.

Special Member ” – has the meaning ascribed to such term in Section 5.2(k) hereof.

Startup Day ” – means the “startup day” within the meaning of Section 860G(a)(9) of the Code, of a “real estate mortgage investment conduit,” as defined in Section 860D of the Code, that holds the Note.

State ” – means the state in which the Property is located.

Substitute Property ” – has the meaning ascribed to such term in Section 14.2 hereof.

Substituted Property ” – has the meaning ascribed to such term in Section 14.2 hereof.

Substitute Release Price ” – has the meaning ascribed to such term in Section 14.2(a)(N) hereof.

Successor Borrower ” – means an entity designated or approved by Lender whose sole purpose is to own the Defeasance Collateral delivered by Borrower under Article 11 and assume Borrower’s obligations with respect to the Loan or New Note, as applicable. Successor Borrower shall be a single purpose bankruptcy remote entity.

Subsidiary ” – has the meaning ascribed to such term in Section 5.2(n)(xiii) hereof.

Taking ” – has the meaning ascribed to such term in Section 12.7(a) hereof .

Tax Impound ” – has the meaning ascribed to such term in Section 4.1 hereof.

Taxes ” – has the meaning ascribed to such term in Section 4.1 hereof.

TC Cap ” – has the meaning ascribed to such term in Section 12.5 hereof.

Terrorism Coverage ” – has the meaning ascribed to such term in Section 12.5 hereof .

Title Company ” – means First American Title Insurance Corporation.

Transfer ” – has the meaning ascribed to such term in Section 15.1(a) hereof .

TRIPRA ” – has the meaning ascribed to such term in Section 12.5 hereof.

TROP ” – has the meaning ascribed to such term in Section 15.1(c)(ii)(A) hereof.

TRT ” – has the meaning ascribed to such term in Section 15.1(c)(ii)(A) hereof.

UCC ” – means the Uniform Commercial Code as adopted in the State where the Property is located.

U.S. Obligations ” – means direct full faith and credit obligations of the United States of America that are not subject to prepayment, call or early redemption.

Underwriter Group ” – has the meaning set forth in Section 16.35(b) hereof.

Windstorm Coverage ” – has the meaning ascribed to such term in Section 12.1(b)(iii) hereof.

Work ” – has the meaning as ascribed to such term in Section 4.4.1 of Exhibit E attached hereto.

 

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[NO FURTHER TEXT ON THIS PAGE]

 

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EXHIBIT B

PROPERTY/ADDRESS INFORMATION

Property Address: See Schedule 1

 

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EXHIBIT C

LIST OF LOAN DOCUMENTS AND CLOSING DOCUMENTS

 

1. LOAN DOCUMENTS . The documents numbered 1.1 through 5.3 below of even date herewith (unless otherwise specified) and any amendments, modifications and supplements thereto which have received the prior written approval of Lender and any documents executed in the future that are approved by Lender and that recite that they are “ Loan Documents ” for purposes of this Agreement, are collectively referred to as the “ Loan Documents ”.

 

  1.1 This Agreement;

 

  1.2 Note;

 

  1.3 Mortgage;

 

  1.4 Absolute Assignment of Leases and Rents;

 

  1.5 States of California, Colorado, Florida, Illinois, Kentucky, New Jersey, Ohio, Texas and Virginia Uniform Commercial Code - Financing Statement - Form UCC-1;

 

  1.6 State of Delaware Uniform Commercial Code - Financing Statement - Form UCC-1;

 

  1.7 Borrower’s Certification;

 

  1.8 Certification of Taxpayer Identification Number and Non-Foreign Status;

 

  1.9 Borrower Authorization Form;

 

  1.10 Estoppel Certificates;

 

  1.11 Cash Management Agreement;

 

  1.12 O&M Letter Agreements;

 

2. OTHER CLOSING DOCUMENTS .

 

  A. State Specific Documents/Affidavits :

 

  2.1 Flood Hazard Notices;

 

  B. Opinions :

 

  2.1 Bankruptcy Non-Consolidation Opinion of Borrower’s legal counsel;

 

  2.2 Formation, Existence and Authority Opinions;

 

  2.3 Enforceability Opinions;

 

3. ORGANIZATIONAL DOCUMENTS.

 

  3.1 Certificate of Limited Partnership Borrower;

 

  3.2 Certificate of Limited Liability Company Borrower;

 

  3.3 Certificate of Limited Partnership Guarantor;

 

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4. TITLE COMPANY DOCUMENTS.

 

  4.1 Title Company Escrow Instruction Letter;

 

  4.2 Closing Statement;

 

5. MISCELLANEOUS DOCUMENTS.

 

  5.1 Hazardous Materials Indemnity Agreement (Unsecured); and

 

  5.3 Limited Guaranty.

 

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EXHIBIT D

LITIGATION DISCLOSURES

 

Claimant

  

Location

  

Date of Loss

  

Description of Incident

  

Reserve Amount

  

Status

Sharon Edwards    6 Sylvan Way    12/8/2005    slip & fall on snow/ice    $ 10,000    Law suit - discovery ongoing

 

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EXHIBIT E

ADDITIONAL IMPOUNDS

 

4.4.1 DEFINITIONS .

Cost Breakdown ” shall mean a reasonably detailed description and cost breakdown of the Work to be paid or reimbursed from the disbursement from the applicable Impound.

Work ” shall mean any work performed and to be paid from the disbursement from the applicable Impound.

General TI Cap ” shall mean (i) in the event Northrop VA renews its Lease pursuant to the terms of its Lease or the Earn-Out Advance shall not have occurred, $11,000,000, as such amount may be reduced as a result of releases of Release Properties as set forth in Exhibit F attached hereto, or (ii) in the event Northrop VA fails to renew its Lease pursuant to the terms of such lease (following the Earn-Out Advance), $30,000,000 (“ Northrop TI Cap ”), which such Northrop TI Cap shall not be reduced in any event as a result of releases of Release Properties (other than the release of the Northrop VA Property, and in such event clause (i) hereof shall apply).

 

4.4.2 INTENTIONALLY OMITTED .

 

4.4.3 TENANT IMPROVEMENT IMPOUNDS .

 

  (a) General TI Impound . Borrower shall deposit with Lender the following amounts (collectively, “ General TI Impound ”): (i) $281,250.00 commencing on July 1, 2012 in the event the Earn-Out Advance is made and (ii) $177,083.33 commencing on July 1, 2013 in the event the Earn-Out Advance is not made (each such amount, the “ General TI Deposit ”) and on each Due Date after such respective date until such time as the General TI Impound equals or exceeds the amount of the General TI Cap whereupon (provided no Default has then occurred and is continuing) further deposits shall be suspended. Upon the occurrence of a Default, deposits hereunder shall resume commencing with the next ensuing Due Date and shall continue until the Default shall have been cured. If the General TI Impound is drawn upon and the balance of such impound falls below the General TI Cap, deposits hereunder shall resume commencing with the next ensuing Due Date and shall continue until the General TI Cap is again achieved. Notwithstanding the foregoing, in the event that rollover of tenants at the Property (based on both Lease renewals and future leasing) exceeds twenty percent (20%) of Adjusted Actual Net Operating Income in any one year or forty percent (40%) in any two year period from July 1, 2017 to July 1, 2021, the General TI Cap shall not be in effect. In the event that rollover of tenants at the Property falls below the thresholds set forth in the previous sentence, the General TI Cap shall be reinstated and, provided no Default is continuing, any General TI Impound funds in excess of the General TI Cap shall be returned to Borrower. The General TI Impound shall be used to pay or reimburse Borrower for tenant improvements, leasing commissions and other leasing costs (collectively, “ General TI Leasing Costs ”) that may be required for new or renewal tenants in the Property. So long as no Default exists, Lender shall disburse funds from the General TI Impound to Borrower monthly, on a space by space basis. Lender shall disburse funds from the General TI Impound for any space in accordance with Section 4.4.3(d) hereof. All funds held in the General TI Impound that are directly related to a Property that is to be released from the encumbrance of the Loan in accordance with the terms and conditions of this Agreement shall be released from the General TI Impound and delivered to Borrower upon the release of said Property, and the monthly amount payable by Borrower on each Due Date will be adjusted downward by the corresponding impound amount set forth on Exhibit F hereto for the Released Property.

 

  (b)

Designated TI Impound . Borrower shall deposit with Lender (collectively, “ Designated TI Impound ”) (i) an amount equal to $2,243,534.00 on the Disbursement Date for the currently

 

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identified tenant improvements, leasing commissions and other leasing costs (collectively, the “ Designated TI Leasing Costs ”) that may be required for new or renewal tenants of the spaces in amounts identified on Exhibit E-2 attached hereto and (ii) any and all Lease-termination payments received by Borrower (collectively, the “ Lease Termination Payments ”). The portion of the Designated TI Impound to be disbursed with respect to such space shall (subject to (y) below) be equal to the actual costs incurred for tenant improvements, leasing commissions and other leasing costs for such space pursuant to evidence as required by Section 4.4.3(d) hereof. So long as no Default exists, Lender shall disburse funds from the Designated TI Impound (x) to pay or reimburse Borrower in accordance with Section 4.4.3(d) hereof and (y) to return Lease Termination Payments to Borrower upon the execution of a new lease for the space for which the applicable Lease Termination Payment was received. So long as no Default exists, Lender shall disburse funds from the Designated TI Impound to pay or reimburse Borrower in accordance with Section 4.4.3(d) hereof. Provided no Default is continuing and upon payment of all Designated TI Leasing Costs, any funds remaining in the Designated TI Impound shall be disbursed to Borrower at the direction of Borrower. All funds held in the Designated TI Impound that are directly related to a Property that is to be released from the encumbrance of the Loan in accordance with the terms and conditions of this Agreement shall be released from the Designated TI Impound and delivered to Borrower upon the release of said Property.

 

  (c) Northrop VA Deposits . Following the Earn-Out Advance, in the event of a Northrop VA Event, the General TI Cap shall increase to the Northrop TI Cap. At Borrower’s option, either the General TI Deposit shall be increased or Excess Cash Flow (as defined in the Cash Management Agreement) shall be deposited into the General TI Impound in an amount determined by Lender that would cause the General TI Impound to meet the Northrop TI Cap no later than the date of the expiration of the Northrop VA Lease. All General TI Impounds over and above the $11,000,000.00 General TI Cap shall be released to Borrower upon the reletting of the Northrop VA space if the Earn-Out Advance shall have occurred.

 

  (d) Disbursements General TI Impound and Designated TI Impound . With respect to a General TI Impound and Designated TI Impound, Lender shall disburse funds to Borrower only upon Lender’s receipt and approval of each of the following items with respect to the applicable space, which Borrower agrees are reasonable:

 

  (i) Borrower’s written request for such disbursement, including the name of the tenant and the location and total net rentable square feet contained in the applicable space;

 

  (ii) a complete copy of a fully executed new lease of the applicable space or a renewal or extension of the current lease of such space, certified by Borrower to be such;

 

  (iii) with respect to any disbursement which, when added to all prior disbursements, equals ninety percent (90%) or less of the original Impound for such space:

 

  (1) the Cost Breakdown of the Work;

 

  (2) a certification of an authorized officer of Borrower that:

 

  (i) the Cost Breakdown is accurate and all Work shown in the Cost Breakdown has been completed lien-free, in a workmanlike manner and in accordance with the requirements of the Lease and all applicable laws;

 

  (ii) Borrower has actually paid or incurred the Leasing Costs to be paid or reimbursed from the disbursement; and

 

  (iii) the Leasing Costs to be paid or reimbursed from the disbursement are not in excess of the market-rates for these items;

 

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  (3) paid receipts evidencing that the Work has been fully paid (provided, however, that such paid receipts shall not be required in the event Borrower is requesting funds to pay the applicable contractors or subcontractors rather than requesting a reimbursement for costs already paid);

 

  (4) lien waivers evidencing that the Work has been completed lien free;

 

  (5) if required by Lender, an inspection report issued by an inspector selected and retained by Lender, the cost of which shall be paid by Borrower, evidencing that all Work covered by the disbursement has been completed in a workmanlike manner and in accordance with applicable building codes; and

 

  (6) if required by Lender, such other evidence as may be reasonably necessary to verify the current accuracy of the certification and any inspection report, the costs of which shall be paid by Borrower;

 

  (iv) with respect to any disbursement which, when added to all prior disbursements, equals more than ninety percent (90%) of the original Impound for such space the following additional items shall be required:

 

  (1) a current estoppel certificate executed by the tenant of the space which shall include, without limitation, such tenant’s acknowledgment that:

 

  (i) the Lease is in full force and effect and neither Borrower nor the tenant is in default thereunder;

 

  (ii) all Work required under the Lease has been satisfactorily completed and all tenant allowances required to be paid under the Lease have been paid in full and the tenant claims no offset rights or rent credits with respect to such Work;

 

  (iii) all conditions to the tenant’s occupancy of the space and the payment of rent have been satisfied; and

 

  (iv) the tenant is in actual occupancy of and conducting business in the space.

 

  (2) if required by Lender, such other evidence as may be necessary to verify the current accuracy of the estoppel certificate, the costs of which shall be paid by Borrower; and

 

  (3) Borrower shall complete the lien-free performance or installation of the Work in a workmanlike manner and in accordance with all applicable laws, ordinances, rules and regulations.

For purposes on this Section 4.4.3 , the term “ Leasing Costs ” shall mean, as applicable, the General TI Leasing Costs and/or the Designated TI Leasing Costs.

 

4.4.4 MAINTENANCE AND CAPITAL IMPOUNDS .

 

  (a) Intentionally Omitted .

 

  (b) Intentionally Omitted .

 

  (c)

Capital Expenditures Impound . Borrower shall deposit with Lender the following amount(s) (collectively, “ Capital Expenditures Impound ”): an annualized amount equal to $0.20 per square

 

E-3


 

foot of net rentable area on each Due Date commencing with the First P&I Due Date. The Capital Expenditures Impound shall be used for payment or reimbursement of the Capital Expenditures (defined below). So long as no Default exists, Lender shall disburse funds from the Capital Expenditures Impound to Borrower monthly, in increments of at least $5,000.00 or more per disbursement, to pay or reimburse Borrower for the Capital Expenditures, in accordance with Section 4.4.4(d) hereof. No deposits into the Capital Expenditures Impound shall be required with respect to any Property leased to a single tenant that is responsible for capital improvements and repairs under its Lease, provided (a) no Default is continuing, (b) such tenant is not in material default under its Lease beyond all applicable notice and cure periods provided therein, and (c) Borrower enforces the terms of the Lease requiring the applicable tenant to make such repairs and improvements. With respect to a Property for which no Capital Expenditures Impound is being required, if any of the foregoing conditions are not satisfied or if the applicable tenant fails to extend or renew its Lease within the time periods set forth in such Lease, Borrower shall commence making Capital Expenditure Impound deposits with respect to such Property not to exceed an annualized amount equal to $0.20 per square foot of net rentable area upon Lender’s written demand. All funds held in the Capital Expenditures Impound that are directly related to a Property that is to be released from the encumbrance of the Loan in accordance with the terms and conditions of this Agreement shall be released from the Capital Expenditures Impound and delivered to Borrower upon the release of said Property.

 

  (d) Disbursements from the Capital Expenditures Impound . Lender shall pay to and/or reimburse Borrower out of the Capital Expenditures Impound upon receipt and approval by Lender of the following items, which Borrower agrees are reasonable:

 

  (i) a Cost Breakdown of the Work;

 

  (ii) a certification of an authorized officer of Borrower that the Cost Breakdown is accurate and all Work shown on the Cost Breakdown has been completed lien-free, in a workmanlike manner and in accordance with all applicable laws, ordinances, rules and regulations;

 

  (iii) paid receipts evidencing that the Work has been fully paid (provided, however, that such paid receipts shall not be required in the event Borrower is requesting funds to pay the applicable contractors or subcontractors rather than requesting a reimbursement for costs already paid);

 

  (iv) lien waivers evidencing that the Work has been completed lien free;

 

  (v) if required by Lender, an inspection report issued by an inspector selected and retained by Lender, the cost of which shall be paid by Borrower, evidencing that all Work covered by the disbursement has been completed in a workmanlike manner and in accordance with applicable building codes;

 

  (vi) if required by Lender, a title search for the Property indicating that the Property is free from all liens, claims, and other encumbrances not previously approved by Lender;

 

  (vii) if required by Lender, such other evidence as may be reasonably necessary to verify the current accuracy of the certification and any inspection report, the costs of which shall be paid by Borrower; and

 

  (viii) Borrower shall complete the lien-free performance or installation of the Work in a workmanlike manner and in accordance with all applicable laws, ordinances, rules and regulations.

All Impounds set forth in this Exhibit E shall be maintained in an account which will bear interest for the benefit of Borrower.

 

E-4


EXHIBIT E-1

LIST OF WORK

Attached

 

E-1-1


Northrop VA Property – In the event the Earn-Out Advance has been made

Attached

 

E-1-2


EXHIBIT E-2

DESIGNATED TI IMPOUND AMOUNTS

2000 Corporate Center Drive, Newbury Park, CA: $2,243,534.00

 

E-2-1


EXHIBIT F

ALLOCATED LOAN AMOUNT FOR EACH INDIVIDUAL PROPERTY

 

Loan No.

 

Address

 

County

  Allocated
Loan Amount
  Reduction in
General TI
Deposit
(per annum)
  Reduction in
General TI
Deposit*

(per annum)
  Reduction in
General TI

Cap (clause
(i) only)
  Reduction in
General TI

Cap (clause
(i) only)*

31-0909757

  2000 & 21000 Corporate Center Drive, Newbury Park, CA   Ventura   $ 13,094,034.00   $ 187,000.00   $ 192,000.00   $ 625,000.00   $ 968,000.00

31-0909757

  3701 Doolittle Drive, Redondo Beach, CA   Los Angeles   $ 10,755,814.00   $ 148,000.00   $ 152,000.00   $ 496,000.00   $ 768,000.00

31-0909757

  5200 Sheila Street, Commerce, CA   Los Angeles   $ 9,352,882.00   $ 103,000.00   $ 106,000.00   $ 344,000.00   $ 532,000.00

31-0909757

  1920 E. Maple Drive, El Segundo, CA   Los Angeles   $ 17,770,475.00   $ 110,000.00   $ 114,000.00   $ 369,000.00   $ 571,000.00

31-0909757

  6000 Connection Drive, Irving, TX   Dallas   $ 25,065,723.00   $ 336,000.00   $ 345,000.00   $ 1,125,000.00   $ 1,740,000.00

31-0909757

  1460 N. Glenville Drive, Richardson, TX   Dallas   $ 3,741,153.00   $ 53,000.00   $ 55,000.00   $ 178,000.00   $ 276,000.00

31-0909757

  6 Sylvan Way, Parsippany, NJ   Morris   $ 17,162,538.00   $ 272,000.00   $ 279,000.00   $ 909,000.00   $ 1,407,000.00

31-0909757

  1600-1601 SW 80th Street, Plantation, FL   Broward   $ 20,342,518.00   $ 297,000.00   $ 305,000.00   $ 992,000.00   $ 1,535,000.00

31-0909757

  200 Corporate Drive, Dixon, IL   Lee   $ 9,352,882.00   $ 99,000.00   $ 102,000.00   $ 331,000.00   $ 513,000.00

31-0909757

  11493 Sunset Hills Road, Reston, VA   Fairfax   $ 14,684,024.00   $ 127,000.00   $ 131,000.00   $ 426,000.00   $ 659,000.00

31-0909757

  3201 Columbia Road, Richfield, OH   Summit   $ 9,119,060.00   $ 51,000.00   $ 53,000.00   $ 171,000.00   $ 265,000.00

31-0909757

  1150 South Columbia Drive, Campbellsville, KY   Taylor   $ 12,158,746.00   $ 118,000.00   $ 122,000.00   $ 396,000.00   $ 613,000.00

 

F-1


Loan No.

 

Address

 

County

  Allocated
Loan Amount
  Reduction in
General TI
Deposit
(per annum)
  Reduction in
General TI
Deposit*

(per annum)
    Reduction in
General TI

Cap (clause
(i) only)
    Reduction in
General TI

Cap (clause
(i) only)*

31-0909757

  15350-15395 Vickery Drive, Houston, TX   Harris   $ 20,015,167.00   $ 200,150.00   $ 203,724.00      $ 665,678.00      $ 1,030,238.00

31-0909757

  18300 East 28th Avenue, Aurora, CO   Adams   $ 2,384,985.00   $ 23,850.00   $ 24,276.00      $ 79,322.00      $ 122,762.00

31-0909757*

  7555 Colshire Drive, McLean, VA*   Fairfax*     N/A     N/A   $ 1,191,000.00   $ 3,893,000.00     N/A

 

* In the event the Earn-Out Advance shall have been made.

 

F-2


EXHIBIT G

ADDITIONAL INSURANCE PROVISIONS

Pursuant to Section 12.2 hereof, Borrower, at its sole cost and expense, shall also obtain and maintain the coverage and/or policy marked below which shall comply with the requirements of Section 12 of this Agreement:

x    Special Flood Hazard Coverage : Flood insurance in an amount equal to the lesser of (A) the outstanding principal balance of the Note or (B) the maximum amount of such insurance available for the type of property as the Property under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended. Borrower shall execute and deliver to Lender the Official Flood Notice provided by Lender, and, prior to Lender’s receipt of evidence of the related flood insurance policy, Borrower shall deliver to Lender a copy of the flood insurance application and evidence of payment for such insurance.

 

G-1


SCHEDULE 1

BORROWERS

1. TRT NOIP Corporate Center Drive – Newbury Park LP, a Delaware limited partnership (2000 & 21000 Corporate Center Drive, Newbury Park, CA)

2. TRT NOIP Doolittle – Redondo Beach LP, a Delaware limited partnership (3701 Doolittle Drive, Redondo Beach, CA)

3. TRT NOIP Sheila – Commerce LP, a Delaware limited partnership (5200 Sheila Street, Commerce, CA)

4. TRT NOIP Maple – El Segundo LP, a Delaware limited partnership (1920 E. Maple Drive, El Segundo, CA)

5. TRT NOIP Connection – Irving LP, a Delaware limited partnership (6000 Connection Drive, Irving, TX)

6. TRT NOIP Glenville – Richardson LP, a Delaware limited partnership (1460 N. Glenville Drive, Richardson, TX)

7. TRT NOIP Sylvan Way – Parsippany LLC, a Delaware limited liability company (6 Sylvan Way, Parsippany, NJ)

8. TRT NOIP SW 80 – Plantation LLC, a Delaware limited liability company (1600-1601 SW 80 th Street, Plantation, FL)

9. TRT NOIP Corporate Drive – Dixon LLC, a Delaware limited liability company (200 Corporate Drive, Dixon, IL)

10. iStar CTL Sunset Hills – Reston LLC, a Delaware limited liability company (11493 Sunset Hills Road, Reston, VA)

11. TRT NOIP Columbia – Richfield LLC, a Delaware limited liability company (3201 Columbia Road, Richfield, OH)

12. TRT NOIP Columbia – Campbellsville LLC, a Delaware limited liability company (1150 South Columbia Drive, Campbellsville, KY)

13. TRT NOIP Eagle LP, a Delaware limited partnership (15350-15395 Vickery Drive, Houston, TX)

14. TRT NOIP East 28 – Aurora LLC, a Delaware limited liability company (18300 East 28 th Avenue, Aurora, CO)

 

G-1


SCHEDULE 5.1(v)

DESCRIPTION OF REA’s

None

 

Schedule 16.31 - Page 1


SCHEDULE A-10

PROPERTY MANAGERS/TENANT MANAGERS

Property Managers

None.

Tenant Managers

 

    

Tenant Manager

  

Property

1.   

WellPoint, Inc.

  

2000 & 2100 Corporate Center Dr., Newbury Park, California

2.   

Northrop Grumman Space & Mission

  

3701 Doolittle Drive, Redondo Beach, California

3.   

Unified Western Grocers, Inc.

  

5200 Sheila Street, Commerce, California

4.   

Equinix Operating Company, Inc.

  

1920 E. Maple Drive, El Segundo, California

5.   

CEVA Freight LLC

  

(1) 15350 - 15395 Vickery Drive, Houston, Texas

 

(2) 18300 East 28 th Avenue, Aurora, Colorado

6.   

Nokia Inc.

  

6000 Connection Drive, Irving, Texas

7.   

Nortel Networks, Inc.

  

1460 N. Glenville Dr., Richardson, Texas

8.   

Avis Budget Group, Inc.

  

6 Sylvan Way, Parsippany, New Jersey

9.   

Crawford & Company

  

1600-1601 SW 80 th Street, Plantation, Florida

10.   

Spectrum Brands, Inc.

  

200 Corporate Drive, Dixon, Illinois

11.   

Unysis Corporation

  

11493 Sunset Hills Road, Reston, Virginia

12.   

Amazon.com Inc.

  

1150 South Columbia Drive, Campbellsville, Kentucky

13.    FedEx Ground Package Systems    3201 Columbia Road, Richfield, Ohio

 

Schedule 16.32 - Page 1

 

 

Exhibit 10.3

LOAN AGREEMENT

(FLOATING RATE PORTFOLIO)

between

TRT NOIP FLOATING MEZZ HOLDCO LLC,

a Delaware limited liability company, and

TRS NOIP MEZZ HOLDCO LLC, a

Delaware limited liability company,

individually and collectively, as Borrower

and

iSTAR FINANCIAL INC.,

as Lender

Dated as of June       , 2010

 

 

 


TABLE OF CONTENTS

 

         Page

SECTION 1 DEFINITIONS

   2

        1.1  

  General Definitions    2

1.2  

  Terms; Utilization of GAAP for Purposes of Financial Statements Under Agreement    17

1.3  

  Other Definitional Provisions    17

1.4  

  Absence of Senior Loan    17

SECTION 2 AMOUNTS AND TERMS OF THE LOAN

   17

2.1  

  Loan Disbursement and Note    17

2.2  

  Interest    18

2.3  

  Payments    19

2.4  

  Payments and Prepayments on the Loan    19

2.5  

  Lender’s Records; Mutilated, Destroyed or Lost Notes    21

2.6  

  Taxes    21

2.7  

  Application of Payments    22

2.8  

  Right of Set-Off; Escrow Fee    22

SECTION 3 CONDITIONS TO LOAN

   23

3.1  

  Conditions to Funding of the Loan on the Closing Date    23

SECTION 4 REPRESENTATIONS AND WARRANTIES

   25

4.1  

  Organization, Powers, Qualification and Organization Chart    25

4.2  

  Authorization of Borrowing; No Conflicts; Governmental Consents; Binding Obligations and License and Security
    Interests of Loan Documents
   25

4.3  

  Indebtedness    27

4.4  

  Title    27

4.5  

  Litigation    28

4.6  

  Payment of Taxes    28

4.7  

  Governmental Regulation; Margin Loan    28

4.8  

  ERISA    28

4.9  

  Broker’s Fees    29

4.10

  Solvency    29

4.11

  Insurance    29

4.12

  Single Purpose Bankruptcy Remote Entities    29

4.13

  Representations Remade    29

SECTION 5 AFFIRMATIVE COVENANTS

   30

5.1  

  Financial Statements and Other Reports    30

5.2  

  Existence; Qualification    32

5.3  

  Payment of Impositions    32

5.4  

  Insurance    33

5.5  

  Inspection; Lender Meeting    34

5.6  

  Compliance with Laws    34

5.7  

  Further Assurances    34

5.8  

  Property Owners and Holdco    35

5.9  

  Special Purpose Entity. Borrower shall, at all times, be a Special Purpose Bankruptcy Remote Entity    35


         Page

SECTION 6 INTENTIONALLY OMITTED

   35
SECTION 7 NEGATIVE COVENANTS    35
        7.1     Indebtedness    35
7.2     Liens and Related Matters    36
7.3     Senior Loan Documents    36
7.4     Restriction on Fundamental Changes    36
7.5     Transactions with Affiliates    37
7.6     Use of Lender’s Name    37
7.7     ERISA    37
7.8     Due on Sale or Encumbrance    38
7.9     Payments; Distributions    41
7.10   Approval Matters    41
SECTION 8 CASUALTY AND CONDEMNATION    42
SECTION 9 DEFAULT, RIGHTS AND REMEDIES    42
9.1     Event of Default    42
9.2     Acceleration and Remedies    44
9.3     Remedies Cumulative; Waivers; Reasonable Charges    45
SECTION 10 SECONDARY MARKET TRANSACTION    46
10.1     Secondary Market Transaction    46
SECTION 11 MISCELLANEOUS    47
11.1     Expenses and Attorneys’ Fees    47
11.2     Certain Lender Matters    47
11.3     Indemnity    48
11.4     Amendments and Waivers    49
11.5     Notices    50
11.6     Survival of Warranties and Certain Agreements    51
11.7     Miscellaneous    51
11.8     APPLICABLE LAW    51
11.9     Successors and Assigns    52
11.10   CONSENT TO JURISDICTION AND SERVICE OF PROCESS    52
11.11   WAIVER OF JURY TRIAL    52
11.12   Publicity    53
11.13   Performance by Lender/Attorney-in-Fact    54
11.14   Brokerage Claims    54
11.15   Agreement    55


LOAN AGREEMENT

(FLOATING RATE PORTFOLIO)

THIS LOAN AGREEMENT (FLOATING RATE PORTFOLIO) (this “ Agreement ”) dated as of June       , 2010, by TRT NOIP FLOATING MEZZ HOLDCO LLC , a Delaware limited liability company (“ TRT Borrower ”), and TRS NOIP MEZZ HOLDCO LLC , a Delaware limited liability company (“ TRS Borrower ”; TRT Borrower and TRS Borrower are individually and collectively referred to hereinafter as “ Borrower ”), jointly and severally, each having an address at c/o Dividend Capital Total Realty Trust, 518 17 th Street, Denver, Colorado 80202 and iSTAR FINANCIAL INC. , a Maryland corporation (together with its successors and assigns, hereinafter referred to as “ Lender ”), with offices at 1114 Avenue of the Americas, New York, New York 10036.

R E C I T A L S

A. Each Person identified on Exhibit A-1 is the fee owner of the Property identified opposite the name of such Person on Exhibit A-1 (each such Person is a “ TRT Property Owner ” and all of such Persons are the “ TRT Property Owners ”).

B. Each Person identified on Exhibit A-2 is the fee owner of the Property identified opposite the name of such Person on Exhibit A-2 (each such Person is a “ TRS Property Owner ” and all of such Persons are the “ TRS Property Owners ”). Each such TRT Property Owner and TRS Property Owner is a “ Property Owner ” and all of such TRT Property Owners and TRS Property Owners are the “ Property Owners ”.

C. TRT NOIP Floating Real Estate Holdco LLC, a Delaware limited liability company (“ TRT Holdco ”), is, indirectly, the owner of 100% of the membership interests and/or partnership interests in each TRT Property Owner.

D. TRS NOIP Real Estate Holdco LLC, a Delaware limited liability company (“ TRS Holdco ”), is, indirectly, the owner of 100% of the membership interests and/or partnership interests in each TRS Property Owner.

C. TRT Borrower is the owner of 100% of the membership interests in TRT Holdco. TRS Borrower is the owner of 100% of the membership interests in TRS Holdco.

D. Borrower desires to borrow from Lender, and Lender desires to lend to Borrower, a loan in the amount of $66,156,795.00.

NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions and agreements contained herein, Borrower and Lender agree as follows:

 

1


SECTION 1

DEFINITIONS

1.1 General Definitions .

In addition to any other terms defined in this Agreement, the following terms shall have the following meanings:

Affiliate ” means any Person: (A) directly or indirectly controlling, controlled by, or under common control with, another Person; (B) directly or indirectly owning or holding forty-nine percent (49%) or more of any equity interest in another Person; or (C) forty-nine percent (49%) or more of whose voting stock or other equity interest is directly or indirectly owned or held by such other Person.

Agreement ” means this Loan Agreement (Floating Rate Portfolio) (including all schedules, exhibits, annexes and appendices hereto), as amended, modified or supplemented from time to time.

Applicable Minimum Senior Release Price ” means, for each Property, the minimum payment required to be paid to the Senior Lender pursuant to the Senior Loan Documents to effect a Sale of such Property (or, in connection with a defeasance of the Lien of the Senior Mortgage encumbering the applicable Property) without the occurrence of a Senior Loan Default or Senior Loan Event of Default.

Approval Matters ” means any one or more of the following: (a) the execution and delivery of Leases (and related guarantees) and modifications, supplements, amendments and restatements of Leases (and related guarantees), (b) enforcement of Leases (and related guarantees) against a defaulting tenant (and, if applicable, guarantor); (c) consents to assignments and subleases by a tenant under a Lease; (d) the execution and delivery of Material Contracts and amendments, modifications, replacements, restatements or terminations of Material Contracts, the giving or withholding of material waivers, consents and approvals under, the request for material waivers, consents and approvals under, and enforcement of, such Material Contracts against a defaulting Person; (e) operating and capital budgets in respect of any Property Owner or any Property, any material changes to any such budgets, the incurring of material liability not set forth in any such budgets and any material expenditures not set forth in any such budgets; (f) material capital improvements whether or not set forth in a budget approved by Lender; (g) except as required under the Senior Loan Documents, the institution, termination or modification of any lockbox or other cash management arrangements and documents establishing, maintaining or requiring any such arrangements pertaining to any Property, any Property Owner, TRT Holdco, TRS Holdco or Borrower; provided, however, during the continuance of an Event of Default, “Approval Matters” described in part (d) of this definition shall include all contracts and agreements, including management agreements, brokerage agreements, service contracts and construction contracts between a Property Owner and another Person, whether or not the same are Material Contracts.

“Authorized Officer” means the chief executive officer, chief financial officer or other executive officer of Borrower.

 

2


Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as amended from time to time and all rules and regulations promulgated thereunder.

Base Rate ” means a fixed rate per annum equal to ten percent (10%).

“Borrower’s Advisor” is defined in Section 4.9.

Business Day ” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are required by law to be closed.

Carveout Guarantor ” means Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership.

Carveout Guaranty ” means that certain guaranty of Carveout Guarantor in favor of Lender of even date herewith.

Change of Control ” means the occurrence of any one or more of the following: (i) a Person (together with any one or more of its Affiliates) shall have acquired, in one or more transactions, ownership or control of a majority of the voting Securities of DCTRT or (ii) DCTRT shall cease to Control Borrower.

Closing ” means that the disbursement of the proceeds of the Loan shall have been made to, or upon the order of, Borrower.

Closing Checklist ” means the closing checklist attached hereto as Exhibit E .

Closing Date ” means the date hereof.

Code ” means the United States Internal Revenue Code of 1986, and any rule or regulation promulgated thereunder from time to time.

Collateral ” means the Pledged Interests and all other personal property of Borrower pledged or mortgaged to Lender as collateral security for repayment of the Loan and all “proceeds” (as defined in the UCC) of any of the foregoing Pledged Interests or other property.

Companion Borrower ” means the “Borrower” as defined in the Companion Loan Agreement.

Companion Loan ” means the “Loan” as defined in the Companion Loan Agreement.

Companion Loan Agreement ” means the Loan Agreement (Fixed Rate Portfolio) of even date herewith among Companion Borrower and Lender.

Companion Loan Documents ” means the “Loan Documents” as defined in the Companion Loan Agreement.

Companion Proceeds ” means “Net Sales Proceeds” and “Net Refinancing Proceeds” each as defined in the Companion Loan Documents.

 

3


“Companion Sale of a Property” means a “Sale of a Property” as defined in the Companion Loan Documents”.

Confidential Information ” is defined in Section 11.12.

Contingent Obligation ,” as applied to any Person, means any direct or indirect liability, contingent or otherwise, of that Person: (a) with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (c) under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect the applicable Person against fluctuations in interest rates; or (d) under any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect that Person against fluctuations in currency values. Contingent Obligations shall include (1) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (2) the obligation to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement, and (3) any liability of such Person for the obligations of another through any agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the amount determined in accordance with GAAP.

Contribution Agreement ” means that certain Contribution Agreement of even date herewith among TRT Borrower, TRS Borrower and Lender.

Control ” (including with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

DCTRT ” means Dividend Capital Total Realty Trust Inc., a Maryland corporation, and its successors.

DCTRT Group ” means the Related Parties and DCTRT.

“DCTRT Leasing” means DCTRT Leasing Corp., a Delaware corporation.

“DCT Real Estate” means DCTRT Real Estate Holdco LLC, a Delaware limited liability company.

 

4


“Debt Service Coverage Calculation Date” is the date of the closing of the applicable Modification or Refinancing.

“Debt Service Coverage Period” is defined in the definition of Debt Service Coverage Ratio.

Debt Service Coverage Ratio ” means the ratio of (a) Net Adjusted Operating Income during the period commencing on the date that is one year prior to the final day of the Loan Month in which the Debt Service Coverage Calculation Date occurs and ending on the final day of the Loan Month in which the Debt Service Coverage Calculation Date occurs; provided, however, if the Debt Service Coverage Calculation Date occurs prior to the first anniversary of the Closing Date, Lender shall reasonably adjust such calculation to annualize Net Adjusted Operating Income, (b) the aggregate amount of the payments of scheduled interest and principal to be paid on the Loan and the Senior Loan during the period “ Debt Service Coverage Period ”) commencing on the day immediately following the final day of the Loan Month in which the Debt Service Coverage Calculation Date occurs and ending on the anniversary of such day (assuming for such purposes that interest (i) on the Loan is calculated at an interest rate equal to the Base Rate scheduled to be in effect from time to time during the Debt Service Coverage Period and (ii) on the Senior Loan is calculated at an interest rate equal to the interest rate scheduled to in effect for the Senior Loan during the Debt Service Coverage Period and that the principal amount of each the Loan and the Senior Loan during such period will be the principal amount of the Loan and Senior Loan, as applicable, as of the Calculation Date in question less scheduled amortization, but computed after giving effect to principal reduction and other changes in economic terms in connection with the related Refinancing, Sale of a Property or Modification).

Debt Service Coverage Target Ratio ” means 1.6 to 1 (1.6:1).

Default ” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period.

Default Rate ” means a rate per annum equal to the Base Rate plus five percent (5%).

Default Interest ” is defined in Section 2.2(A).

Distribution ” is defined in Section 7.9.

Dollars ” and the sign “ $” mean the lawful money of the United States of America.

“Embargoed Person” is defined in Section 4.7.

Environmental Laws ” means all present and future federal, state and/or local laws, statutes, ordinances, codes, rules, regulations, orders, decrees, licenses, decisions, orders, injunctions, requirements and/or directives of Governmental Authorities, as well as common law, imposing liability, standards of conduct or otherwise pertains or relates to, or for, for the environment, industrial hygiene, the regulation of Hazardous Substances, natural resources, pollution or waste management that are applicable to the Property.

 

5


ERISA ” means the Employee Retirement Income Security Act of 1974, and all rules and regulations promulgated thereunder.

Event of Default ” is defined in Section 9.1.

Excess Interest ” is defined in Section 2.2(C).

“Excluded Lease” means a Lease (a) that has expired by its terms or that is scheduled to expire by its terms during the applicable Debt Service Coverage Period unless the tenant under such Lease has timely and properly notified Property Owner that it will renew or extend the term of such Lease, (b) that has a tenant or Lease guarantor that has filed a voluntary proceeding under the Bankruptcy Code, has consented to an involuntary proceeding under the Bankruptcy Code, is a debtor in an involuntary proceeding under the Bankruptcy Code that has not been dismissed within one hundred twenty (120) days of the filing of such involuntary proceeding, has made an assignment for the benefit of creditors or is the subject of a reorganization, receivership, composition or analogous proceeding that has not been dismissed within one hundred twenty (120) days after the initiation thereof (unless, in any such instance, in the case of a proceeding where the tenant is the debtor, the tenant has assumed the Lease and such assumption has been approved by order of the court in the proceeding that has become final by appeal or lapse of time for appeal and, if such tenant’s obligations under such Lease have been guaranteed, such guarantor has ratified and confirmed its guaranty), (c) that has a tenant that has vacated the applicable premises and such tenant does not maintain a credit rating for its long-term unsecured debt as established by Standard & Poors, a division of The McGraw-Hill Companies, Inc. of BBB- or better or (d) that has a tenant that is in monetary default or material non-monetary default beyond the expiration of any applicable curative period.

Financing Statements ” means collectively (i) the UCC-1 Financing Statements naming TRT Borrower, as debtor, and Lender, as secured party, and filed with such filing offices as Lender may require, and (ii) the UCC-1 Financing Statements naming TRS Borrower, as debtor, and Lender, as secured party, and filed with such filing offices as Lender may require.

Foreclosure Event ” means the occurrence of an Event of Default specified in Sections 9.1(A), 9.1(B), 9.1(D), 9.1(E), 9.1(F), (9.1)(M), 9.1(N), or 9.1(O). For the avoidance of doubt, a default under the Put Agreement by DCTRT shall not be a Foreclosure Event.

GAAP ” means generally accepted accounting principles in the United States of America, consistently applied, as of the date in question.

Governmental Authority ” means the United States of America, any state, any foreign governments and any political subdivision or regional division of the foregoing, and any agency, department, court, regulatory body, commission, board, bureau or instrumentality of any of them.

Harborside Interests” means membership, partnership or other ownership interests in any Harborside Owner.

Harborside Owner ” means Plaza X Leasing Associates L.L.C., Plaza X Realty L.L.C., Plaza X Urban Renewal Associates L.L.C., American Financial Exchange L.LC., and TRT Harborside LLC.

 

6


Harborside Proceeds ” means without duplication, (a) any and all monetary consideration or other economic compensation, whether direct or indirect, that is received by a Harborside Owner (or any other Person that is an Affiliate of a Harborside Owner) for, or in connection with, a sale or other disposition of all or any part of the Harborside Property or Harborside Interests, including the stated purchase price, cash, prepaid expenses and contracts for the seller’s service and the service of an Affiliate of a Harborside Owner, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with such sale or disposition not paid to an Affiliate of a Harborside Owner (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with such sale or disposition, (ii) amounts necessary to fully repay, satisfy or defease any loan (x) held by a Person that is not a member of the DCTRT Group, a Harborside Owner or Person that is an Affiliate of a Harborside Owner or member of the DCTRT Group and (y) secured by the Harborside Property and/or Harborside Interests; and (iii) any escrows or holdbacks under the until released to, or upon the order of, a Harborside Owner and (b) the proceeds of any financing or refinancing (excluding financing closing on the date hereof) in which any part of the Harborside Property or Harborside Interests serves as collateral adjusted by deducting proceeds applied to satisfy then existing mortgage loans not held by a Harborside Owner or their respective Affiliates and the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a financing or refinancing to the extent not paid to any Harborside Owner or any of their respective Affiliates, including, independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, attorneys’ fees, professional and consultant costs, environmental and engineering report costs, and application and commitment fees, if any, incurred in connection with the applicable financing or refinancing.

“Harborside Property” means the real estate described on Exhibit C attached hereto and related property and leases among or between any Harborside Owner.

Hazardous Materials ” means (a) any pollutants, toxic pollutants, oil, gasoline, petroleum products, asbestos, materials or substances containing asbestos, explosives, chemical liquids or solids, radioactive materials, polychlorinated biphenyls or related or similar materials, or any other solid, liquid or other emission, substance, material, product or by-product defined, listed or regulated as a hazardous, noxious, toxic or solid substance, material or waste or defined, listed or regulated as causing cancer or reproductive toxicity, or otherwise defined, listed or regulated as hazardous or toxic in, pursuant to, or by any federal, state or local law, ordinance, rule, or regulation, now or hereafter enacted, amended or modified, in each case to the extent applicable to the Properties including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et seq. ); the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq. ); the Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq. ); Sections 25117, 25281, 25316 or 25501 of the California Health & Safety Code; any so-called “Superfund” or “Superlien” law; the Toxic Substance Control Act of 1976 (15 U.S.C. Section 2601 et seq. ); the Clean Water Act (33 U.S.C. Section 1251 et seq. ); and the Clean Air Act (42 U.S.C. Section 7901 et seq. ); (b) any substance which is or contains asbestos, radon, polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, lead paint, motor fuel or other petroleum hydrocarbons; (c) fungus, mold, mildew, or other biological agents the presence of which may adversely affect

 

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the health of individuals or other animals or materially adversely affect the value or utility of the Properties, and/or (d) any other substance which causes or poses a threat to cause a contamination or nuisance with respect to all or any portion of the Properties or any adjacent property or a hazard to the environment or to the health or safety of Persons.

Improvements ” means all buildings, improvements, alterations or appurtenances now, or at any time hereafter, located upon, in, under or above the Land or any part thereof and comprise part of the Property.

Indebtedness ”: With respect to any Person means, without duplication, (a) any indebtedness of such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of any property or asset of such Person to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) any obligations of such Person for the deferred purchase price of property or services; (c) any obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; (d) any obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (e) any obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases; (f) any obligations of such Person as a result of any final judgment rendered against such Person or any settlement agreement entered into by such Person with respect to any litigation unless such obligations are stayed upon appeal (for so long as such appeal shall be maintained) or are fully discharged or bonded within one hundred and twenty (120) days after the entry of such judgment or execution of such settlement agreement; (g) any obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit; (h) any Contingent Obligations; (i) any Indebtedness of others referred to in clauses (a) through (h) above or clause (j) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss; and (j) any Indebtedness referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

Indemnified Liabilities ” is defined in Section 11.3.

Indemnitees ” is defined in Section 11.3.

Independent Person ” is defined in Schedule 4.12 .

 

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Intercreditor Agreement ” means the Intercreditor Agreement between Lender and Senior Lender of even date herewith and, from and after mutual execution and delivery thereof, any analogous document executed and delivered in connection with a Permitted Refinancing.

Interest Period ” means the period of time beginning on the first (1st) day of a Loan Month and ending on the last day of such Loan Month; provided , however , the first Interest Period shall commence on the Closing Date and continues to and includes June 30, 2010.

Interest Rate ” means the applicable of the Base Rate or the Default Rate.

“Interest Rate Protection Agreement” is defined in the Senior Loan Agreement.

Intervening Entity ” means any Persons (other than the Property Owners) in which Borrower, TRT Holdco or TRS Holdco owns a direct or indirect ownership interest.

Land ” means the real estate legally described on Exhibit B .

Late Charge ” is defined in Section 2.2(D).

Leases ” means any and all leases, subleases, occupancy agreements or grants of other possessory interests, whereby a Property Owner acts as the lessor, sublessor, licensor, grantor or in another similar capacity, now or hereafter in force, oral or written, covering or affecting the Land or Improvements, or any part thereof, together with all rights, powers, privileges, options and other benefits of any such Property Owner thereunder and any and all guaranties of the obligations of the lessees, sublessees, occupants, and grantees thereunder, as such leases, subleases, occupancy agreements or grants may be extended, renewed, modified or replaced from time to time (exclusive of any ground lease having any such Property Owner as ground lessee).

Legal Requirements ” means all applicable laws, statutes, ordinances, rulings, regulations, codes, decrees, orders, policies, guidelines, judgments, covenants, conditions, restrictions, approvals, permits and requirements or of, from or by any Governmental Authority, including zoning, subdivision, land use, environmental, building, safety, health, wetlands and landmark preservation, housing and fire laws and the Americans with Disabilities Act.

“Lender’s Advisor” is defined in Section 4.9.

Lien ” means any lien, mortgage, pledge, security interest, charge or monetary encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and (b) any negative pledge or analogous agreement including any agreement not to directly or indirectly convey, assign, sell, mortgage, pledge, hypothecate, grant a security interest in, grant options with respect to, transfer or otherwise dispose of, voluntarily or involuntarily, by operation of law or otherwise, any direct or indirect interest in an asset or direct or indirect interest in the ownership of an asset.

Loan ” means the loan in the aggregate stated principal amount of $66,156,795.00 from Lender to Borrower as evidenced by the Note.

 

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Loan Documents ” means this Agreement, the Note, the Carveout Guaranty, the Financing Statements, the TRT Pledge Agreement, the TRS Pledge Agreement, the Contribution Agreement and all other documents, instruments, certificates and other deliveries made by Borrower to Lender which otherwise evidence, secure and/or govern the Loan. Borrower and Lender agree that the Put Agreement is not a “Loan Document”, and that a default under the Put Agreement shall not be a Default or an Event of Default hereunder.

Loan Month ” means a calendar month.

“Loan Party” means any of Borrower, Carveout Guarantor and DCTRT.

Material Adverse Effect ” means (A) a material adverse effect upon the business, operations, properties, assets or financial condition of DCTRT, the Related Parties or the Properties, taken as a whole, or (B) the impairment, in any material respect, of the ability of any of any member of the DCTRT Group to perform its respective material obligations under any of the Loan Documents or the Put Agreement or of Lender to enforce or collect any of the Obligations. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then existing events would result in a Material Averse Effect.

“Material Contract” means (i) any management agreement for a Property or (ii) any contract or other agreement relating to the operation, maintenance or construction of any Property which is in excess of $1,000,000.00 per annum.

Maturity Date ” is defined in Section 2.4(B).

Maximum Rate ” is defined in Section 2.2(C).

“Mezzanine Minimum Release Amount” means an amount of money for each Property equal to the applicable amount specified on Exhibit D in the column captioned “Mezzanine Minimum Release Amount”.

“Mezzanine Release Payment Amount” means, with respect to a Sale of a Property an amount equal to the lesser of (A) the outstanding balance of the Loan; and (B) the greater of (i) Net Sale Proceeds with regard to such Sale of a Property or (ii) the applicable Mezzanine Minimum Release Amount.

Modification ” is defined in Section 7.3(A).

Note ” means that the Promissory Note, together with the Substitute Notes and all future advances, extensions, renewals, substitutions, modifications and amendments of the Promissory Note and Substitute Notes.

“Net Adjusted Operating Income” means, without duplication of any item, Net Operating Income as such amount may be adjusted by Lender in its good faith discretion (a) to eliminate Operating Income and Operating Expenses to the extent attributable to a Property that is sold in connection with a Sale of a Property, (b) to eliminate Operating Income derived from

 

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Leases that are Excluded Leases, (c) to reduce Operating Income by rent reductions expressly provided for under the Leases to occur during the applicable Debt Service Coverage Period, and (d) to eliminate lease termination payments, insurance collections (other than business interruption or rent loss insurance), condemnation awards, judgment collections, settlement payments, forfeited security deposits and other non-recurring or extraordinary income and expenses.

Net Operating Income ” shall mean, with respect to any period of time, the amount obtained by subtracting Operating Expenses from Operating Income.

Net Refinancing Proceeds ” means the Refinancing Proceeds remaining after application of Refinancing Proceeds to satisfaction (or full defeasance of Liens securing) the Senior Loan as required pursuant to the Senior Loan Documents. If a Property is sold to an Affiliate through a Permitted Affiliate Sale of a Property, Net Refinancing Proceeds, shall mean, following such Permitted Affiliate Sale of a Property, as to such Property, Net Refinancing Proceeds in respect of such Property (with references to “Senior Loan” referring to loans held by Persons that are not members of the DCTRT Group or any Affiliate of any member of the DCTRT Group).

Net Sales Proceeds ” means, without duplication, any and all monetary consideration or other economic compensation, whether direct or indirect, that is received by a Property Owner (or any other Person that is an Affiliate of a member of the DCTRT Group) for, or in connection with, a Sale of a Property, including the stated purchase price, cash and prepaid expenses, contracts for the seller’s service and the service of an Affiliate of Borrower, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Sale of a Property not paid to an Affiliate of Borrower (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) or other member of the DCTRT Group, including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with a Sale of a Property and (ii) any escrows or holdbacks under the applicable Sale Agreement unless and until released to Borrower, and (iii) to the extent paid to the Senior Lender or utilized to effect a partial defeasance of the Senior Mortgage securing the Senior Loan encumbering the applicable Property, the Applicable Minimum Senior Release Price. If a Property is sold to an Affiliate through a Permitted Affiliate Sale of a Property, Net Sales Proceeds shall, following such Permitted Affiliate Sale mean, as to such Property, without duplication, any and all monetary consideration or other economic compensation, whether direct or indirect, that is received by the applicable seller of the Property that is an Affiliate of a member of the DCTRT Group (or any other Person that is an Affiliate of a Property Owner, TRT Holdco, TRS Holdco, Borrower or DCTRT) for, or in connection with, a Sale of a Property, including the stated purchase price, cash and prepaid expenses, contracts for the seller’s service and the service of an Affiliate of Borrower, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Sale of a Property not paid to an Affiliate of Borrower (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) or other member of the DCTRT Group, including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with a Sale of a Property and (ii) any escrows or holdbacks under the applicable Sale Agreement

 

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unless and until released to Borrower, and (iii) to the extent paid to the holder of the loan encumbering the applicable property (held by a Person that is not a member of the DCTRT Group or Affiliate of a member of the DCTRT Group) or utilized to effect a partial defeasance of the liens securing such loan encumbering the applicable Property, the applicable payment to pay such loan or to defease such loan.

“Northrop Indemnity” means that certain Indemnity and Direction Agreement, dated as of the date hereof, between iStar Financial Inc., DCTRT, Dividend Capital Total Realty Trust Inc., a Delaware corporation, Carveout Guarantor, TRT Acquisitions LLC, a Delaware limited liability company, and iStar NG LP, a Delaware limited partnership.

“Northrop VA Property” means the Property located in Tyson’s Corner, Virginia and leased to Northrop Grumman Systems Corporation.

“Northrop Transfer” is defined in Section 7.8(F).

“Northrop Transfer Payment” is defined in Section 2.4(C).

Obligations ” means, in the aggregate, all obligations, liabilities and indebtedness of every nature of Borrower from time to time owed to Lender under the Loan Documents, including the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable to Lender under the Loan Documents whether before or after the filing of a proceeding under the Bankruptcy Code by or against Borrower. The term “Obligations” shall also include any judgment against Borrower or the Collateral with respect to such obligations, liabilities and indebtedness of Borrower.

OFAC ” is defined in Section 4.7.

Officer’s Certificate ” means the certificate of an executive officer, chief financial officer or other officer or representative with knowledge of the matters addressed in such certificate.

“Operating Expenses” means “Operating Expenses” as defined in the Senior Loan Agreement as in effect as of the date hereof.

“Operating Income” means “Operating Income” as defined in the Senior Loan Agreement as in effect as of the date hereof.

Organizational Documents ” means, as applicable, for any Person, such Person’s articles or certificate of incorporation, by-laws, partnership agreement, trust agreement, certificate of limited partnership, articles of organization, certificate of formation, shareholder agreement, voting trust agreement, operating agreement, limited liability company agreement and/or analogous documents, as amended, modified or supplemented from time to time.

Payment Date ” means the 1 st day of each Loan Month commencing on July 1, 2010.

 

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Permitted Indebtedness ” means (i) ordinary and customary trade payables incurred in the ordinary course of business of ownership of the Collateral which are payable not later than thirty (30) days after receipt of the original invoice which are in fact not more than sixty (60) days overdue, and do not at any one time exceed $100,000 in the aggregate and (ii) the Loan.

Permitted Modification ” is defined in Section 7.3(A).

Permitted Organizational Modification ” means any amendment of Organizational Documents that (a) does not admit any Person as a member or partner in a Property Owner or an Intervening Entity, or (b) does not result in a Change of Control of Borrower and (c) no new equity that is invested in Borrower in connection with the admission of a new member thereof is paid to the initial owner(s) of the membership interest in Borrower, (d) does not materially change, modify, amend or waive, the SPE Provisions of any such Person’s Organizational Documents and (e) does not cause Borrower to cease to be a Special Purpose Bankruptcy Remote Entity.

“Permitted Affiliate Sale of a Property” is defined in Section 7.8(B).

Permitted Sale of a Property ” means a Sale of a Property that complies with Section 7.8(B).

Permitted Refinancing ” means a Refinancing that complies with Section 7.8(C).

Person ” means and includes natural persons, corporations, limited liability companies, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof and their respective permitted successors and assigns (or in the case of a governmental person, the successor functional equivalent of such Person).

Pledge Agreement ” means the TRT Pledge Agreement and the TRS Pledge Agreement.

Pledged Interests ” means the TRT Pledged Interests and the TRS Pledged Interests.

Promissory Note ” means the Promissory Note dated of even date herewith made by Borrower to the order of Lender in the original principal amount of $66,156,795.00.

Property ” means the Land, the Improvements and all other collateral mortgaged or pledged by the Senior Loan Documents and are identified on Exhibit A-1 and Exhibit A-2 or any individual Property identified on Exhibit A-1 or Exhibit A-2 as the context requires.

“Property Owner” is defined in the Recitals.

Purchase Agreement ” means that certain Purchase and Sale Agreement dated as of May 3, 2010 among TRT Acquisitions LLC, the sellers identified therein and joined in by iStar Financial Inc. and DCTRT for the purposes specified therein, as amended from time to time.

 

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“Put Agreement” means that certain Put Agreement of DCTRT in favor of Lender of even date herewith.

Refinancing ” means a refinancing of the Senior Loan.

Refinancing Expenses ” means the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Permitted Refinancing to the extent not paid to any member of the DCTRT Group or any of their respective Affiliates, including, independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, attorneys’ fees, professional and consultant costs, environmental and engineering report costs, and application and commitment fees, if any, incurred in connection with a Refinancing.

Refinancing Proceeds ” means the proceeds of any Permitted Refinancing deducting only the Refinancing Expenses for the Refinancing.

Related Party ” means any of Borrower, TRT Holdco, TRS Holdco, Intervening Entities, Carveout Guarantor and Property Owners.

“Sale Agreement” is defined in Section 7.8(B).

Sale of a Property ” means (a) any, direct sale or conveyance, assignment, transfer, exchange or other disposition of all or any part of a Property; or (b) any assignment, sale, conveyance, assignment, transfer, exchange, or other disposition of 100% of the ownership interests, direct or indirect, of a Property Owner, in each case under (a) or (b) to a Person that is not a member of the DCTRT Group or any of such Person’s respective Affiliates unless the same is a Permitted Affiliate Sale of a Property.

Securities ” means any stock, shares, voting trust certificates, bonds, debentures, options, warrants, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities’ or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

Securitization ” is defined in Section 10.1.

Senior Lender ” means the holder(s), from time to time, of the Senior Loan Documents.

Senior Loan ” means that certain $443,030,000.00 loan made by Senior Lender to Property Owners and, from and after a Permitted Refinancing, includes a Permitted Refinancing of a Senior Loan.

Senior Loan Agreement ” means (a) that certain Loan Agreement dated as of the date hereof, between Senior Lender and Property Owners governing the Senior Loan and (b) from and after a Permitted Refinancing, the loan agreement or analogous documents pertaining to any Permitted Refinancing Loan.

Senior Loan Default ” means any default by any Person (other than the Senior Lender) under the Senior Loan Documents.

 

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Senior Loan Documents ” means the Senior Loan Agreement, the Senior Mortgage, the Senior Note and all other agreements, instruments and documents evidencing, securing, guarantying, perfecting, and/or governing the Senior Loan.

Senior Loan Event of Default ” means the occurrence of a default or other event under the Senior Loan Documents that, continues following such notice, curative or grace periods in the Senior Loan Documents, that results or, at the election of the Senior Lender or any other Person may result in, acceleration of the Senior Loan, foreclosure in respect of any collateral for the Senior Loan, the exercise of any remedies under the Senior Loan Documents including trustee’s sale, foreclosure, Uniform Commercial Code sale, the appointment of a receiver, or other remedies.

Senior Mortgage ” means the “Mortgage” as defined in the Senior Loan Agreement.

Servicer ” is defined in Section 10.1.

Senior Note ” means the promissory note(s) evidencing the Senior Loan.

SPE Provisions ” means provisions of a Person’s Organizational Documents that are substantially similar to the provisions required to be included in the Organizational Documents of the Borrower pursuant to Section 5.9 (except references in the Organizational Documents of the Property Owners will refer to the Senior Loan and not the Loan and an Independent Person will be required only for TRT Holdco and TRS Holdco (for TRT Holdco, TRS Holdco and actions by the Intervening Entities and Property Owners) and Borrower, and except as otherwise modified as reflected in the Organizational Documents for each Property Owner and Intervening Entity delivered to Lender and in effect as of the date hereof).

Special Purpose Bankruptcy Remote Entity ” is defined in Schedule 4.12 .

“Special Purpose Entity” means a Person which is a limited liability company or limited partnership whose Organizational Documents include the SPE Provisions and which Person has at all time complied with such SPE Provisions.

Substitute Note ” means all notes given in substitution or exchange for the Promissory Note or another Substitute Note.

Tax Liabilities ” is defined in Section 2.6.

Title Company ” means First American Title Insurance Company.

Title Insurance Policy ” shall mean an owner’s policy(ies) of title insurance issued by the Title Company (or the closest equivalent available in any given jurisdiction), in the amount of not less than the allocable purchase price for the Properties as set forth in the Purchase Agreement, insuring that the Property Owners own fee simple title to the Property (including any easements appurtenant thereto) subject only to such defects as the purchaser under the Purchase Agreement is obligated or has agreed to accept. At Lender’s option and expense, the Title Policy shall contain a mezzanine loan endorsement.

 

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Transfer ” means, (a) when used as a verb, to, directly or indirectly, lease, sell, assign, convey, give, exchange, devise, mortgage, encumber, pledge, hypothecate, alienate, grant a security interest, or otherwise create or suffer to exist any Lien, transfer or otherwise dispose, or to contract or agreement to do any of the foregoing, whether by operation of law, voluntarily, involuntarily or otherwise as well as any other action or omission which has the practical effect of initiating or completing the foregoing and (b) when used as a noun, a direct or indirect, lease, sale, assignment, conveyance, gift, exchange, devise, mortgage, encumbrance, pledge, hypothecation, alienation, grant of a security interest or other creation or sufferance of a Lien, transfer of other disposition, or contract or agreement by which any of the foregoing may be effected, whether by operation of law, voluntary or involuntary and any other action or omission which has the practical effect of initiating or completing the foregoing.

“TRS Holdco” is defined in the Recitals.

“TRS Pledge Agreement” means that certain Pledge Agreement of even date herewith between TRS Borrower and Lender.

“TRS Pledged Interests” means 100% of the membership interests in TRS Holdco including all rights as a member in TRS Holdco, all rights to profits and losses pertaining to such membership interests, all distributions, from time to time, pertaining to such membership interests upon full or partial liquidation or otherwise, all right, title and interest to participate in the management and voting of TRS Holdco, all options and other agreements for the purchase of any interests in TRS Holdco and all documents or certificates representing rights and interests in TRS Holdco.

“TRS Property Owner” is defined in the Recitals.

“TRT Holdco” is defined in the Recitals.

“TRT Pledge Agreement” means that certain Pledge Agreement of even date herewith between TRT Borrower and Lender.

“TRT Pledged Interests” means 100% of the membership interests in TRT Holdco including all rights as a member in TRT Holdco, all rights to profits and losses pertaining to such membership interests, all distributions, from time to time, pertaining to such membership interests upon full or partial liquidation or otherwise, all right, title and interest to participate in the management and voting of TRT Holdco, all options and other agreements for the purchase of any interests in TRT Holdco and all documents or certificates representing rights and interests in TRT Holdco.

“TRS Property Owner” is defined in the Recitals.

UCC ” means the Uniform Commercial Code as in effect in the State of New York.

UCC Policy ” means a so-called “ Eagle 9 UCC Insurance Policy ” (or equivalent satisfactory to Lender such as a “ UCC-Plus Policy ”) issued by an insurer reasonably approved by Lender insuring Lender’s first priority perfected security interest in the Collateral in the amount of the Loan with a mezzanine/pledged equity endorsement.

 

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1.2 Terms; Utilization of GAAP for Purposes of Financial Statements Under Agreement . For purposes of this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to such terms in conformity with GAAP. Financial statements and other information furnished to Lender pursuant to subsection 5.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation unless otherwise required pursuant to the Senior Loan.

1.3 Other Definitional Provisions . References to “Sections,” “Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined in Section 1.1 may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. In this Agreement, “hereof,” “herein,” “hereto,” “hereunder” and the like mean and refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which the respective word appears; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; the phrase “and/or” shall mean that either “and” or “or” may apply; the phrases “attorneys’ fees,” “legal fees” and “counsel fees” shall include any and all attorneys’, paralegal and law clerk fees and disbursements, including court costs, fees and disbursements at the pre-trial, trial and appellate levels incurred or paid by Lender in protecting its interest in the Properties and the Collateral and enforcing its rights hereunder and/or the other Loan Documents; references to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement or any other Loan Document; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; references to a Person’s “knowledge” in this Agreement or the other Loan Documents refers to the actual knowledge of the Person in question; and all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations.

1.4 Absence of Senior Loan . For purposes of Sections 5 and 7, in the event no Senior Loan exists, references to “Senior Loan Documents” shall refer to the Senior Loan Documents pertaining to the then most recently existing Senior Loan and references to “Senior Lender” shall refer to “Lender” for purposes of all approvals, consents, acknowledgements and deliveries (other than payment of monies) provided, that Lender need not be named as “mortgagee” on any casualty insurance policy.

SECTION 2

AMOUNTS AND TERMS OF THE LOAN

2.1 Loan Disbursement and Note . Subject to the terms and conditions of this Agreement, Lender shall lend the Loan to Borrower on the Closing Date. The proceeds of the Loan shall be used to pay a portion of the purchase price of the Properties. The disbursement of the Loan in accordance with the foregoing shall be made on the Closing Date. The Loan shall be evidenced by the Note. The Obligations of Borrower under this Agreement, the Note and the other Loan Documents are secured by, among other things, the Pledge Agreement and the Liens created or arising under the other Loan Documents.

 

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2.2 Interest .

(A) Interest Rate . Subject to the provisions of Section 2.2(C) hereof, the outstanding principal balance of the Loan shall bear interest at the Base Rate. However, (a) during the existence of any Event of Default, or (b) after the Maturity Date, the principal amount of the Loan shall bear interest (“ Default Interest ”) at the Default Rate. With respect to any scheduled payments of principal and interest (excluding the payment due on the Maturity Date), Borrower will be entitled to a grace period of five (5) days from such date before Default Interest is imposed by reason of such late payment; provided , however , if Borrower fails to make the required payment within said five (5) day period, Default Interest will be calculated from the original due date. Except as set forth in the preceding sentence, the Default Interest shall commence, without notice, immediately upon and from the occurrence of (a) or (b) above, as the case may be, and shall continue until all Events of Defaults are expressly waived, in writing, by Lender or the Obligations are paid in full. Default Interest shall be payable upon demand, and, to the extent unpaid, shall be compounded monthly at the Default Rate. The obligations of the Borrower under this Agreement, the Note and the other Loan Documents are secured by, among other things, the Pledge Agreement.

(B) Computation and Payment of Interest . Interest on the Loan and all other Obligations owing to Lender shall be computed on the daily principal balance of the Note on the basis of actual days elapsed and a 360-day year. Interest on the Loan is payable in arrears. Payments of interest shall be paid to Lender as specified in Section 2.3. In addition, all accrued and unpaid interest shall be paid to Lender on the earlier of the date of prepayment and maturity, whether by acceleration or otherwise. The Loan shall commence to bear interest on the date the proceeds of the Loan are to be disbursed to or for the order of Borrower, provided, however, if the proceeds are disbursed to an escrowee, the Loan shall commence to bear interest from and including the date of disbursement to such escrowee regardless of the date such proceeds are disbursed from escrow.

(C) Interest Laws . Notwithstanding any provision to the contrary contained in this Agreement or the other Loan Documents, Borrower shall not be required to pay, and Lender shall not be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by law (“ Excess Interest ”). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any of the other Loan Documents, then in such event: (1) the provisions of this Section shall govern and control; (2) Borrower shall not be obligated to pay any Excess Interest; (3) any Excess Interest that Lender may have received hereunder shall be, at Lender’s option, (a) applied as a credit against the outstanding principal balance of the Obligations due and owing to Lender (without any prepayment penalty or premium therefor) or for accrued and unpaid interest thereunder (not to exceed the maximum amount permitted by law), (b) refunded to the payor thereof, or (c) any combination of the foregoing; (4) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “ Maximum Rate ”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and

 

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(5) Borrower shall not have any action against Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Obligation due and owing to Lender is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligations due and owing to Lender shall, to the extent permitted by law, remain at the Maximum Rate until Lender shall have received or accrued the amount of interest which Lender would have received or accrued during such period on Obligations due and owing to Lender had the rate of interest not been limited to the Maximum Rate during such period.

(D) Late Charges . If any scheduled payment of principal and/or interest or other amount (excluding the payment due on the Maturity Date) owing pursuant to this Agreement or the other Loan Documents is not paid when due, Borrower shall pay to Lender, in addition to all sums otherwise due and payable, a late charge (“ Late Charge ”) in an amount equal to four percent (4%) of the unpaid amount. With respect to regular monthly payments of principal and/or interest (excluding the payment due on the Maturity Date), Borrower will be entitled to a grace period of five (5) days from the date due before a late charge is imposed by reason of such late payment. Any unpaid late charge shall bear interest at the Default Rate until paid.

2.3 Payments . Interest for the period commencing on the date of disbursement of the Loan and ending on June 30, 2010 shall be paid on the Closing Date. On each Payment Date thereafter commencing with the Payment Date occurring in August, 2010, Borrower shall pay to Lender interest on the outstanding principal of the Loan accrued from and including the immediately preceding Payment Date, to, but not including, the Payment Date on which such payment is to be made. A balloon payment will be required on the Maturity Date.

2.4 Payments and Prepayments on the Loan .

(A) Manner and Time of Payment . Borrower agrees to pay all of the Obligations relating to the Loan as such amounts become due or are declared due pursuant to the terms of this Agreement and the other Loan Documents. All payments shall be made without deduction, defense, setoff or counterclaim (except as expressly provided for in Section 2.8 of this Agreement) by the wire transfer of good immediately available wire transferred federal funds to Lender’s account at JP Morgan Chase Bank, New York, ABA# 021000021, Account #230451489, Account Name: iStar Financial SF Account, Reference: M00153400 Dividend – Floating Rate, or at such other place as Lender may direct from time to time by at least ten (10) days prior notice to Borrower. Borrower shall receive credit for such funds on the date received if such funds are received by Lender by 1:00 P.M. (Denver time) on such day. In the absence of timely receipt, such funds shall be deemed to have been paid by Borrower on the following Business Day. Whenever any payment to be made under the Loan Documents shall be stated to be due on a day that is not a Business Day, or any time period relating to a payment to be made hereunder is stated to expire on a day that is not a Business Day, the payment may be made on the following Business Day and the period will not expire until the following Business Day.

(B) Maturity . The outstanding principal balance of the Loan, all accrued and unpaid interest thereon and all other sums owing to Lender pursuant to the Loan Documents, shall be due and payable on the day (the “ Maturity Date ”) that is the earlier of (a) June 30, 2013 or (b) the date of acceleration of the Loan by virtue of an Event of Default.

 

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(C) Prepayments .

(i) The Loan may be prepaid, in whole, or in part, upon not less than fifteen (15) days’ prior notice to Lender; provided, however, such notice shall become irrevocable unless revoked by notice from Borrower to Lender given (i) in connection with the Sale of a Property to a Person that is not a member of the DCTRT Group or any of their respective Affiliates or in connection with a Refinancing of a Property where the lender is not a member of the DCTRT Group or any of their respective Affiliates, at any time if such sale or refinance does not occur due to any reason other than the applicable seller’s or borrower’s failure to perform its respective obligations under the applicable Sale Agreement or Refinancing agreement, or (ii) other than in connection with the Sale of a Property or a Refinancing of a Property described in part (i) above, at any time prior to five (5) Business Days before the date such prepayment was scheduled to be made by the notice of prepayment (if no such prepayment date was scheduled, then not later than the twenty-fifth (25 th ) day after the giving of the notice of prepayment by Borrower to Lender). Any prepayments on the principal balance of the Loan evidenced by the Note whether voluntary or involuntary, shall be accompanied by payment of interest accrued (on the portion of the principal prepaid) to the date of prepayment.

(ii) Except with respect to the Northrop Transfer, in the event of a Sale of a Property or a Refinancing, Borrower shall, concurrently with the closing of such Sale of a Property, pay to Lender, as a mandatory prepayment of the Loan an amount equal to the Mezzanine Release Payment Amount as to a Sale of a Property or Net Refinancing Proceeds of such Refinancing as the case may be. From and after payment in full of the Companion Loan, Borrower shall pay to Lender, as a mandatory prepayment of the Loan, an amount equal to the amount of the Companion Proceeds concurrently with payment to a Companion Borrower, any member of the DCTRT Group or any of their respective Affiliates of any Companion Proceeds. Following a Permitted Affiliate Sale of a Property, to the extent that any member of the DCTRT Group or their Affiliates receives any Net Sales Proceeds or Net Refinancing Proceeds from the subsequent Sale of a Property or Refinancing of such Property, Borrower shall, as a mandatory prepayment of the Loan, pay to Lender an amount equal to the amount of such Net Sales Proceeds or Net Refinancing Proceeds concurrently with payment of thereof to any member of the DCTRT Group or any of their respective Affiliates. To the extent that after payment in full of the Companion Loan, any Harborside Proceeds are received by any member of the DCTRT Group or their Affiliates, Borrower shall, as a mandatory prepayment of the Loan, pay to Lender an amount equal to the amount of such Harborside Proceeds concurrently with payment of Harborside Proceeds to Harborside Owner, any member of the DCTRT Group or any of their respective Affiliates. If Proceeds exist that are not paid to the Senior Lender in accordance with the Senior Loan Documents or not applied to the repair and restoration of a Property, such Proceeds shall, promptly after receipt by any member of the DCTRT Group or any of their respective Affiliates, be paid to Lender as a mandatory prepayment of the Loan. If the Northrop Transfer is effected, Borrower shall, simultaneously with the Northrop Transfer, pay to Lender as a mandatory prepayment (the “ Northrop Transfer Payment ”) of the Loan, an amount equal to Eighteen Million Four Hundred Thirty-One Thousand Seven Hundred Ninety-Five Dollars ($18,431,795).

 

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(iii) Amounts prepaid shall not be reborrowed.

2.5 Lender’s Records; Mutilated, Destroyed or Lost Notes . The balance on Lender’s books and records shall be presumptive evidence (absent manifest error) of the amounts due and owing to Lender by Borrower; provided that any failure to so record or any error in so recording shall not limit or otherwise affect Borrower’s obligation to pay the Obligations. In case any Note shall become mutilated or defaced, or be destroyed, lost or stolen, Borrower shall, upon request from Lender, execute and deliver a new Note of like principal amount in exchange and substitution for the mutilated or defaced Note, or in lieu of and in substitution for the destroyed, lost or stolen Note. In the case of a mutilated or defaced Note, the mutilated or defaced Note shall be surrendered to Borrower upon delivery to Lender of the new Note. In the case of any destroyed, lost or stolen Note, Lender shall furnish to Borrower, upon delivery to Lender of the new Note (i) certification of the destruction, loss or theft of such Note and (ii) such security or indemnity as may be reasonably required by Borrower to hold Borrower harmless.

2.6 Taxes . Except as expressly provided for herein, any and all payments or reimbursements made under the Agreement, the Note or the other Loan Documents shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto arising out of or in connection with the transactions contemplated by the Loan Documents; excluding, however, the following: taxes imposed on the income of Lender by any jurisdiction or any political subdivision thereof; taxes that are not directly attributable to the Loan; and any “doing business” taxes, however denominated, charged by any state or other jurisdiction (all such taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto, excluding such taxes imposed on income, taxes not directly attributable to the Loan and any “doing business” taxes, herein “ Tax Liabilities ”). If Borrower shall be required by law to deduct any such amounts from or in respect of any sum payable hereunder to Lender, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions, Lender receives an amount equal to the sum it would have received had no such deductions been made. In the event that, subsequent to the Closing Date, (1) any changes in any existing law, regulation, treaty or directive or in the interpretation or application thereof; (2) any new law, regulation, treaty or directive enacted or any interpretation or application thereof; or (3) compliance by Lender with any new request or directive (whether or not having the force of law) from any governmental authority, agency or instrumentality does or shall subject Lender to any tax of any kind whatsoever with respect to this Agreement, the other Loan Documents or the Loan, or change the basis of taxation of payments to Lender of principal, fees, interest or any other amount payable hereunder (except for income taxes, or franchise taxes imposed in lieu of income taxes, imposed generally by federal, state or local taxing authorities with respect to interest or commitment or other fees payable hereunder or changes in the rate of interest or tax on the overall income of Lender, taxes that are not directly attributable to the Loan and any “doing business” taxes, however denominated, charged by any state or other jurisdiction) and the result of any of the foregoing is to increase the cost to Lender of making or continuing its Loan hereunder, as the case may be, or to reduce any amount receivable hereunder, then, in any such case, Borrower shall promptly pay to Lender, within thirty (30) days after its demand, any additional amounts

 

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necessary to compensate Lender, on an after-tax basis, for such additional cost or reduced amount receivable, as determined by Lender with respect to this Agreement or the other Loan Documents. If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.6, it shall promptly notify Borrower of the event by reason of which Lender has become so entitled.

2.7 Application of Payments . Except as otherwise expressly provided in the last sentence of this Section 2.7, all payments made hereunder shall be applied first, to the payment of any Late Charges and other sums (other than principal and interest) due from Borrower to Lender under the Loan Documents, second, to any interest then due at the Default Rate, third to interest then due at the Base Rate, and last to the principal amount. During the continuance of an Event of Default, all sums collected by Lender shall be applied in such order of priority to such items set forth below as Lender shall determine in its sole discretion: (i) to the costs and expenses, including reasonable, actual attorneys’ and paralegals’ fees and costs of appeal, incurred in the collection of any or all of the Loan due or the realization of any collateral securing any or all of the Loan; and (ii) to any or all unpaid amounts owing pursuant to the Loan Documents in any order of application as Lender, in its sole discretion, shall determine.

2.8 Right of Set-Off; Escrow Fee . Notwithstanding any provision contained herein or any of the Loan Documents to the contrary, Borrower has the right to give notice to Lender that Borrower intends to set off against the payments due Lender pursuant to this Agreement, the amounts that Borrower (or any of its Affiliates) is owed under the Northrop Indemnity and/or may set off against iStar Financial Inc., a Maryland corporation, pursuant to Section 9 of the Purchase Agreement or the Northrop Indemnity, as applicable, in an amount not in excess of the amounts permitted pursuant to such Section 9 of the Purchase Agreement or the Northrop Indemnity, as applicable. If Borrower has given such notice, and the claim asserted by Borrower (or any of its Affiliates) is not resolved to the extent required by the Purchase Agreement or the Northrop Indemnity, as applicable, on or before the expiration of the time period set forth in the Purchase Agreement or the Northrop Indemnity, as applicable, for resolution of such claim, Borrower will be permitted to setoff the amount claimed without such setoff being a Default so long as (a) Borrower provides Lender with a second notice notifying Lender that it is exercising its rights of set-off in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable; (b) Borrower provides Lender with a certificate of an Authorized Officer certifying that Borrower is asserting its setoff rights in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable; and (c) Borrower deposits, in good immediately available funds, with an independent third-party escrowee reasonably satisfactory to Lender the amount claimed as a set-off, which funds will be held by such escrowee in accordance with an escrow agreement reasonably satisfactory in form and substance to Borrower and Lender. The funds deposited into such escrow may be invested in FDIC insured money-market accounts and the interest thereon shall be deposited into and thereafter constitute part of the escrowed funds. Upon resolution of such claim in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable, the pertinent funds and interest allocable thereto, shall be distributed to the parties entitled thereto in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable, to the effect that, if the funds are to be distributed to Lender, such funds shall be distributed to Lender and no Default or Event of Default shall be deemed to occur by virtue of the delayed payment to Lender (and in such instance, no Late Charge or such other payment shall be imposed and interest shall not accrue at the Default Rate on such payment

 

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except to the extent Late Charges and Default Interest may otherwise be owed pursuant to this Agreement) and if the funds are to be distributed to Borrower, then, to the extent of the funds claimed as a setoff (and not interest allocable thereto), such amount shall be deemed to be applied as a reduction of the principal amount of the Loan as of the date Borrower first sent notice to Lender claiming a right of set-off.

SECTION 3

CONDITIONS TO LOAN

3.1 Conditions to Funding of the Loan on the Closing Date . The obligation of Lender to disburse the Loan is subject to the prior or concurrent satisfaction of the conditions set forth below.

(A) Performance of Agreements; Truth of Representations and Warranties; No Injunction . The representations and warranties of each Loan Party contained in the Loan Documents shall be true, correct and complete in all material respects on and as of the Closing Date to the same extent as though made on and as of that date. No Legal Requirements shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued or entered, and no litigation shall be pending or threatened, which in the reasonable judgment of Lender would enjoin, prohibit or restrain, or impose or result in a Material Adverse Effect upon the making or borrowing of the Loan or the execution, delivery or performance of the Loan Documents. No Default or Event of Default shall have occurred and then be continuing.

(B) Opinion of Counsel . Lender shall have received and approved written opinions of counsel for the Loan Parties, in form and substance reasonably satisfactory to Lender and its counsel, dated as of the Closing Date. By execution of this Agreement, Borrower authorizes and directs its counsel to render and deliver such opinions to Lender.

(C) Loan Documents . On or before the Closing Date, Borrower shall execute and deliver and cause to be executed and delivered, to Lender all of the Loan Documents and the Put Agreement, unless otherwise noted, dated the Closing Date, duly executed, in form and substance satisfactory to Lender and in quantities designated by Lender (except for the Promissory Note, of which only the original shall be executed). Borrower hereby authorizes Lender to file the Financing Statements in such filing offices as Lender elects.

(D) Insurance Policies and Endorsements . Lender shall have received the policies of insurance required to be maintained under this Agreement and the other Loan Documents. If such policies are not delivered to Lender, Lender must receive a copy of the insurance policies in question and evidence of such insurance satisfactory to it.

(E) Organizational and Authorization Documents . Lender shall have received all documents reasonably requested by Lender, including all Organizational Documents, with regard to the due organization, existence, internal governance, power and authority, due authorization, execution and delivery, authorization to do business and good standing of each member of the DCTRT Group, and such other Persons as Lender may reasonably designate, the validity and binding effect of the Loan Documents and other matters relating thereto, in form and substance satisfactory to Lender.

 

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(F) Closing Statement . Lender shall have received and approved a closing and disbursement statement executed by Borrower with respect to the disbursement of the proceeds of the Loan.

(G) Appointment of Agent for Service of Process . Lender shall have received and approved a letter appointing (and accepted by) National Registered Agents, Inc. as the Loan Parties’ agent for service of process.

(H) Title Insurance Policy, Searches, Perfection and Priority . Lender shall have (i) received the Title Insurance Policy and (ii) received and approved copies of UCC financing statement, judgment, tax lien, bankruptcy and litigation search reports of such jurisdictions and offices as Lender may reasonably designate with respect to Borrower, Property Owners, TRT Holdco, TRS Holdco, any other Intervening Entities and such other Persons as Lender may reasonably require.

(I) Surveys . Lender shall have received plats of survey for each of the Properties.

(J) Other Documents and Deliveries . Borrower shall have delivered such other documents and deliveries as are set forth on the Closing Checklist attached hereto as Exhibit E .

(K) UCC Policy . Lender shall have received the UCC Policy.

(L) Senior Loan Matters . Lender shall have received a true and complete copy of the Senior Loan Documents accompanied by Borrower’s certificate to such effect. No Senior Loan Default or Senior Loan Event of Default shall then exist.

(M) Intercreditor Agreement . Lender and Senior Lender shall have executed and delivered the Intercreditor Agreement to each other.

(N) Companion Loan Agreement . The “Closing” as defined in the Companion Loan Agreement shall have occurred.

(O) Purchase Agreement . The “Closing” as defined in the Purchase Agreement shall have occurred.

(P) Member Agreement . The “Closing” as defined in the Member Interest Purchase and Sale Agreement dated as of May 3, 2010 between iStar Harborside LLC and TRT Acquisitions LLC, as amended, shall have occurred.

(Q) Interest Rate Protection Agreement . Borrower shall deliver a true and complete copy of the Interest Rate Protection Agreement to Lender.

 

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SECTION 4

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to Lender that, after giving effect to the Loan, as of the Closing Date:

4.1 Organization, Powers, Qualification and Organization Chart . Each Related Party is a limited liability company or limited partnership, that is duly organized, validly existing and in good standing under the laws of its state of formation and has all requisite power and authority to own and operate its properties and to carry on its business as now conducted. Borrower and Carveout Guarantor have all requisite power and authority to enter into each Loan Document to which it is a party and to perform their respective obligations thereunder. DCTRT is a corporation, duly formed or organized, validly existing and in good standing under the laws of its state of formation and has all requisite power and authority to own and operate its properties, to carry on its business as now conducted, and to enter into each Loan Document to which it is a party and the Put Agreement. Borrower’s U.S. taxpayer identification number is set forth on Schedule 4.1(A)-1 . Each member of the DCTRT Group is duly qualified and in good standing wherever necessary to carry on its present business and operations. The organization chart attached hereto as Schedule 4.1(A)-2 correctly identifies each Person directly owning (and/or indirectly owing five percent (5%) or more of) the ownership interests in Borrower, TRT Holdco, TRS Holdco and Property Owners, and the direct Subsidiaries, indirect Subsidiaries, and each member of the Intervening Entities and Property Owners. The principal place of business and chief executive office of Borrower, Intervening Entities and Property Owners is set forth on Schedule 4.1(A)-3 . Schedule 4.1(A)-4 identifies the correct legal name, jurisdiction of formation, organization number, type of entity (e.g., corporation, limited partnership, limited liability company, etc.), of each member of the Intervening Entities and Property Owners and also, in the case of the Property Owners, the Property owned by such Property Owner. Each member of the DCTRT Group has filed on or prior to the date due (subject to lawfully permitted and made extensions) all reports, documents and other materials required to be filed by it with any Governmental Authorities, the failure of which would result in a Material Adverse Effect. Borrower has provided to Lender a true and complete copy of the Organizational Documents of each member of the DCTRT Group. The organizational chart attached hereto as Schedule 4.1(A)-5 correctly identifies each Person directly owning (and/or indirectly owning 5% or more of) the Harborside Property and Harborside Owner.

4.2 Authorization of Borrowing; No Conflicts; Governmental Consents; Binding Obligations and License and Security Interests of Loan Documents . TRT Borrower has the power and authority to be a member in TRT Holdco, to incur the Obligations evidenced by the Note and other Loan Documents, to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder and to continue its businesses and affairs as presently conducted. TRS Borrower has the power and authority to be a member in TRS Holdco, to incur the Obligations evidenced by the Note and other Loan Documents, to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder and to continue its businesses and affairs as presently conducted. Each Intervening Entity has the power and authority to be a partner or member, as applicable, in each Person that it is a partner or member in, including the Persons as shown on Schedule 4.1(A)-2 . Each Property Owner has the power and authority to own its Property and to continue its businesses and affairs as presently

 

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conducted. DCTRT and Carveout Guarantor has the power and authority to execute and deliver the Put Agreement and the Carveout Guaranty, as applicable. The incurring of the Obligations by Borrower and the execution, delivery and performance by each of the Loan Parties of each of the Loan Documents and the Put Agreement to which it is a party, the consummation of the transactions contemplated thereby have been duly authorized by all necessary partnership, corporate or limited liability company action, as the case may be. The incurring of the Obligations by Borrower and the execution, delivery and performance by each Loan Party of the Loan Documents and the Put Agreement to which it is a party, the consummation of the transactions contemplated thereby and the exercise of Lender’s rights and remedies under the Loan Documents and the Put Agreement, do not and will not: (1) violate any provision of law applicable to any member of the DCTRT Group, the respective Organizational Documents of, or any order, judgment or decree of any court or other agency of government binding on any member of the DCTRT Group or their respective properties; (2) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under the Senior Loan Documents or any other material agreement or document to which any member of the DCTRT Group is a party or by which such Person or its property may be bound; (3) result in or require the creation or imposition of any Lien upon the Properties, the Collateral or any assets of any member of the DCTRT Group (other than the Liens of Lender); or (4) subject to the Intercreditor Agreement, require any approval or consent of any Person under the Senior Loan Documents, the Organizational Documents of any member of the DCTRT Group or any other agreement or document to which such Person is a party or by which such Person or its property may be bound (except to the extent such approvals or consents have been unconditionally obtained on or before the Closing Date). The incurring of the Obligations, the execution, delivery and performance by each Loan Party of the Loan Documents and the Put Agreement to which it is a party, the consummation of the transactions contemplated thereby and the exercise of Lender’s rights and remedies under the Loan Documents and the Put Agreement do not and will not require any (as to any member of the DCTRT Group) registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other Governmental Authority or regulatory body (except to the extent unconditionally obtained on or before the Closing Date). The Loan Documents and the Put Agreement, when executed and delivered by each Loan Party, as applicable, will be the legally valid and binding obligations of such Loan Parties, as applicable, enforceable against the Loan Parties, subject to bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditors’ rights generally and to the application of general equitable principles in connection with the enforcement thereof. The Pledge Agreement, together with the Financing Statements to be filed in connection therewith, create a valid, enforceable and perfected first priority lien and security interest in the Collateral subject to no other interests, Liens or encumbrances. Borrower is a “registered organization” (as defined in the UCC) organized under the laws of the State of Delaware. The proper office in which to file a financing statement to perfect a security interest that may be perfected by filing under the UCC in the Collateral is the office of the Secretary of State of Delaware. The membership interests in TRT Holdco and TRS Holdco are “securities” (as defined in the UCC) and are certificated. All certificates representing membership interest in TRT Holdco have been delivered by TRT Borrower and no other certificates exist. All certificates representing membership interest in TRS Holdco have been delivered by TRS Borrower and no other certificates exist. Lender has a perfected first priority security interest in the Pledged Interests by “control” (within the meaning of the UCC). The Pledged Interests have been duly and validly issued and are non-assessable. No Person has any right or option to acquire any interest in TRT Holdco, TRS Holdco, any Intervening Entities or any Property Owner except Lender pursuant to the Loan Documents.

 

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4.3 Indebtedness . As of the Closing Date, after giving effect to the transactions contemplated hereby, Borrower does not have any Indebtedness other than Permitted Indebtedness, no Intervening Entity has any Indebtedness and no Property Owner has any Indebtedness other than the Senior Loan and Indebtedness permitted under the Senior Loan Documents.

4.4 Title .

(A) Property Owners have fee simple title to the Properties and have not incurred any Indebtedness secured by Liens not permitted under the Senior Loan Documents. TRT Holdco and TRS Holdco collectively have, directly or indirectly, title to 100% of the membership interests in the Intervening Entities (other than TRT Holdco and TRS Holdco), free and clear of Liens and other interests. Each Intervening Entity (other than TRT Holdco, TRS Holdco, TRT NOIP GT Lease Holdco LLC (which is wholly-owned by TRS Holdco) and TRT NOIP Floating CA LP Holdco (which is wholly-owned by TRT Holdco)) is the sole general partner or sole limited partner, free and clear of other interests, in a Property Owner that is a limited partnership or the sole member in and owner of 100% of the membership interests in each Property Owner that is a limited liability company free and clear of Liens and other interests. No Person that is not directly or indirectly wholly-owned by TRT Holdco or TRS Holdco is a general or limited partner in a Property Owner. Each general partner and limited partner in a Property Owner is the sole holder of such general partnership, or, limited partnership interest, as the case may be, free and clear of Liens and other interests. Borrower is the direct or indirect owner of all of the ownership interests in the Intervening Entities and Property Owners. DCT Real Estate Holdco LLC is the sole member in and owner of 100% of the membership interests in TRT Borrower free and clear of Liens and other interests. DCTRT Leasing is the sole member in and owner of 100% of the membership interests in TRS Borrower free and clear of Liens and other interests. Carveout Guarantor is the sole member in and owner of 100% of the membership interests in DCT Real Estate Holdco LLC and DCTRT Leasing free and clear of Liens and other interests. DCTRT is the sole member in and owner of 100% of the membership interests in Carveout Guarantor free and clear of Liens and other interests

(B) TRT Borrower has good title to the membership interest in TRT Holdco free and clear of Liens and other interests (other than Liens in favor of Lender), owns 100% of the membership interest in TRT Holdco and is the sole member in TRT Holdco.

(C) TRS Borrower has good title to the membership interest in TRS Holdco free and clear of Liens and other interests (other than Liens in favor of Lender), owns 100% of the membership interest in TRS Holdco and is the sole member in TRS Holdco.

(D) No Default, Event of Default, Senior Loan Default or Senior Loan Event of Default exists and, to the best of Borrower’s knowledge, no fact, circumstance, condition or event has occurred or exists which might within the giving of notice and/or the expiration of an applicable grace or curative period, ripen into an Event of Default or Senior Loan Event of Default. Except for the Senior Loan Documents, Property Owners, Intervening Entities, TRT Holdco and TRS Holdco are not subject to any restriction or limitation on their ability to distribute funds to the Borrower.

 

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(E) Borrower has provided Lender with true and complete copies of all Senior Loan Documents.

4.5 Litigation . There are no judgments outstanding against any Related Parties or Carveout Guarantor that would have a Material Adverse Effect, nor to Borrower’s knowledge, is there any litigation, governmental investigation or arbitration pending or threatened in writing against any Related Party or Carveout Guarantor that if, adversely determined, is likely to have a Material Adverse Effect. No petition in bankruptcy, whether voluntary or involuntary, or assignment for the benefit of creditors has ever been filed under the laws of the United States of America or any state thereof by or against any member of the DCTRT Group.

4.6 Payment of Taxes . All tax returns and reports of each member of the DCTRT Group required to be filed by such Persons have been timely filed, and all taxes, assessments, fees and other governmental charges upon the Collateral or the membership interests in TRT Holdco and TRS Holdco which are due and payable as of the Closing Date have been paid in full. All taxes that each member of the DCTRT Group are or were required by Legal Requirements to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the applicable Governmental Authority.

4.7 Governmental Regulation; Margin Loan . No member of the DCTRT Group is, and after giving effect to the Loan, will not be, subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940 or to any federal or state statute or regulation limiting its ability to incur indebtedness for borrowed money. Borrower shall use the proceeds of the Loan only for the purposes set forth in this Agreement. No portion of the proceeds of the Loan shall be used by Borrower in any manner that might cause the borrowing or the application of such proceeds to violate Regulation U, Regulation T or Regulation X or any other regulation of the Board of Governors of the Federal Reserve System or to violate the Exchange Act or any other Legal Requirements. The Loan does not violate the Truth-in-Lending Act (15 U.S.C.A. §§ 1601 et seq. ). Borrower is not a non-resident alien for purposes of U.S. income taxation, and Borrower is not a foreign corporation, partnership, foreign trust or foreign estate (as said terms are defined in the United States Internal Revenue Code). No member of the DCTRT Group is, and shall not become, a Person ( “Embargoed Person” ) with whom Lender is restricted from doing business with under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including, but not limited to, the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental action relating to terrorism financing, terrorism support and/or otherwise relating to terrorism and are not and shall not engage in any dealings or transaction or otherwise be associated with Persons named on OFAC’s Specially Designated and Blocked Persons list.

4.8 ERISA . Borrower is not an “employee benefit plan” (within the meaning of section 3(3) of ERISA) to which ERISA applies and Borrower’s assets do not constitute plan assets. The Loan, the execution, delivery and performance of the Loan Documents and the transactions contemplated by this Agreement are not a non-exempt prohibited transaction under ERISA.

 

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4.9 Broker’s Fees . Except for Hudson River Partners Real Estate Investment Management LP (“ Borrower’s Advisor ”), no broker’s or finder’s fee, commission or similar compensation will be payable with respect to the Loan, the issuance of the Note or any of the other transactions contemplated hereby or by any of the Loan Documents or the Put Agreement based upon any broker engaged by a member of the DCTRT Group or its Affiliates. Borrower shall pay all fees, commissions and compensation due and owing to Borrower’s Advisor in connection with the transaction contemplated hereby. Lender represents and warrants that no broker’s or finder’s fee, commission or similar compensation will be payable with respect to the Loan, the issuance of the Note or any of the other transactions contemplated hereby or by any of the Loan Documents or the Put Agreement based upon any broker engaged by Lender in connection with the origination of the Loan, except the fee payable to HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, L.P. (“ Lender’s Advisor ”). Lender shall pay all fees, commissions and compensation due and owing to Lender’s Advisor in connection with the transaction contemplated hereby.

4.10 Solvency . As of the date of this Agreement and after giving effect to the consummation of the transactions contemplated by the Loan Documents, Borrower, and each of the members of the DCTRT Group: (A) owns and will own assets the fair saleable value of which are (1) greater than the total amount of its respective liabilities (including Contingent Obligations), and (2) greater than the amount that will be required to pay its probable liabilities and its then existing debts as they become absolute and matured considering all reasonably available financing alternatives and potential asset sales; (B) has capital that is not insufficient in relation to its business as presently conducted or any contemplated or undertaken transaction; and (C) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due. The Loan Parties have not entered into the Loan Documents or the transactions contemplated under the Loan Documents with the actual intent to hinder, delay, or defraud any creditor.

4.11 Insurance . Schedule 4.11 sets forth a complete and accurate description of all policies of insurance that will be in effect as of the Closing Date for Borrower, Intervening Entities and the Property Owners. All premiums thereon have been paid in full through the first anniversary of the Closing Date and no notice of cancellation has been received with respect to such policies.

4.12 Single Purpose Bankruptcy Remote Entity and Special Purpose Entity . Borrower hereby represents, warrants, agrees and covenants that Property Owners and the Intervening Entities have been or and all times shall be a Person that is a Special Purpose Entity. Borrower hereby represents, warrants, agrees and covenants that Borrower has, at all times, from its formation, been, and, at all times will be, a Special Purpose Bankruptcy Remote Entity.

4.13 Representations Remade . Borrower warrants and covenants that the foregoing representations and warranties will be true and shall be deemed remade as of the date of the Closing. All representations and warranties made by Borrower or Carveout Guarantor in the other Loan Document or in any certificate or other document delivered to Lender by or on behalf of Borrower pursuant to the Loan Documents shall be deemed to have been relied upon by

 

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Lender, notwithstanding any investigation made by or on behalf of Lender. All such representations and warranties shall survive the making of the Loan and any or all of the advances of the Loan and shall continue in full force and effect until such time as the Loan has been paid in full.

SECTION 5

AFFIRMATIVE COVENANTS

Borrower covenants and agrees that so long as this Agreement shall remain in effect or the Note shall remain outstanding, Borrower shall perform and comply with all covenants in this Section 5.

5.1 Financial Statements and Other Reports . Borrower will maintain, and will cause the Property Owners and Intervening Entities to maintain, a system of accounting in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP (or such other accounting method as is permitted under the Senior Loan Documents) and proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower, TRT Holdco, TRS Holdco and the Intervening Entities.

(A) Financial Statements (Senior Loan) . Borrower will, not later than the applicable time specified in the Senior Loan Documents (subject to such extensions as the Senior Lender may grant), deliver to Lender, true and complete copies of all financial statements, and other financial certificates, reports and information required to be provided by the Property Owners to the Senior Lender, including to the extent so required, rent rolls and debt service yield and/or coverage calculations and certificates.

(B) Notices, Events of Default and Litigation . Borrower shall promptly deliver, or cause to be delivered, copies of all material written notices, certificates, demands, reports or requests given to, or received by Borrower, TRT Holdco, TRS Holdco, any Intervening Entity or any Property Owner from any Governmental Authorities or the Senior Lender or with respect to any Indebtedness of Borrower, TRT Holdco, TRS Holdco, any Intervening Entity or any Property Owner, and shall promptly notify Lender after Borrower receives written notice or acquires actual knowledge of, any material violation of Legal Requirements, investigation, subpoena or audit by any Governmental Authority or default with respect to any Property or any Indebtedness of Borrower, Intervening Entities or Property Owners. Promptly upon Borrower obtaining actual knowledge of any of the following events or conditions, Borrower shall deliver a certificate specifying the nature of such condition or event that constitutes a Default, Event of Default, Senior Loan Default or Senior Loan Event of Default. Promptly upon Borrower obtaining actual knowledge of (1) the institution of any action, suit, proceeding, governmental investigation or arbitration against or affecting any member of the DCTRT Group or any Property that, if adversely determined, would or might reasonably be expected to have a Material Adverse Effect, or (2) any other or any material development in any such action, suit, proceeding, governmental investigation or arbitration at any time pending against or affecting any such Person or any Property that, if adversely determined, would or might reasonably be expected to have a Material Adverse Effect, Borrower will give notice thereof to Lender and provide such other information as may be reasonably available to it to enable Lender and its counsel to evaluate such matters.

 

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(C) ERISA . Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as Lender, in its reasonable discretion, may request, that (A) Property Owners, TRT Holdco, TRS Holdco, Intervening Entities and Borrower are not and do not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan’ within the meaning of Section 3(3) of ERISA; (B) the Property Owners, TRT Holdco, TRS Holdco, Intervening Entities and Borrower are not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true: (i) equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2); (ii) less than twenty-five percent (25%) of each outstanding class of equity interests in Property Owners, TRT Holdco, TRS Holdco and Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or (iii) Property Owners, Intervening Entities and Borrower each qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

(D) Intentionally Omitted .

(E) Estoppel Certificates . Within ten (10) Business Days following a request by Lender, but not more often than one time per calendar year (and, as Lender may request, in connection with a Securitization), Borrower shall provide to Lender, a duly acknowledged written statement confirming the amount of the outstanding Obligations, the terms of payment and maturity date of the Note, the date to which interest has been paid, and whether, to Borrower’s knowledge, any offsets or defenses exist against the Obligations, and if any such offsets or defenses are alleged to exist, the nature thereof shall be set forth in detail. Within ten (10) Business Days following a request from Lender, but not more often than one time per calendar year (and, as Lender may reasonably request, in connection with a Securitization), Borrower shall cause each Property Owner to request Senior Lender to provide to the Lender estoppel certificates, if any, that the Senior Lender is required to provide to a Property Owner pursuant to the Senior Loan Documents and shall thereafter use reasonable efforts to obtain such certificate and deliver it to Lender. Within ten (10) Business Days following a request by Borrower, but in no event more than twice per calendar year, Lender shall provide to Borrower, a duly acknowledged written statement confirming the then outstanding principal amount of the Loan, the scheduled maturity date of the Loan, the date to which interest on the Loan has been paid, and whether, to Lender’s knowledge, any Defaults or Events of Default have occurred under the Loan Documents that have not been cured or waived by Lender.

(F) Other . With reasonable promptness, Borrower will deliver such other information and data in the possession or control of Borrower or any other member of the DCTRT Group with respect to the members of the DCTRT Group, the Properties and the Collateral as from time to time may be reasonably requested by Lender.

(G) Electronic Format . Borrower will use reasonable efforts to provide to Lender a copy of any reports, notices, statements or other deliveries required pursuant to this Section 5.1 in an electronic format reasonably satisfactory to Lender.

 

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(H) DCTRT . In the event that DCTRT shall cease to be Person required under applicable law to file reports with the United States Securities and Exchange Commission, Borrower shall cause DCTRT to provide financial reports and other information to Lender substantially equivalent to the reports to be filed with the United States Securities and Exchange Commission under applicable law within the time periods for filing required, as of the Closing Date, under applicable securities laws; provided that Lender shall enter into a confidentiality agreement regarding confidential information regarding DCTRT provided to Lender by DCTRT reasonably satisfactory in form and substance to Lender, Borrower and DCTRT.

(I) Sale and Refinancing; Harborside . Promptly after execution and delivery thereof, Borrower shall provide, or cause to be provided to Lender, a true and complete copy of any Sale Agreement and amendments and modifications thereof. Promptly after a Property Owner’s receipt of same (or receipt by any member of the DCTRT Group or any of their respective Affiliates of same), Borrower shall provide, or cause to be provided to Lender, a true and complete copy of all term sheets, applications and commitments in respect of a proposed or actual Refinancing. Borrower shall provide, or cause to be provided, to Lender, notice of any proposed sale, disposition, financing or refinancing of any part of the Harborside Property or Harborside Interests and shall, not later than three (3) Business Days before the closing of any such sale, disposition, financing or refinancing, provide, or cause to be provided to Lender, a true and complete copy of, as applicable, the purchase and sale agreement (or analogous document) and all amendments thereto or documents evidencing, securing or governing any loan in respect of a financing or refinancing and amendments thereto, the executed closing and disbursement statement for such sale, disposition, financing or refinancing, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Harborside Proceeds and the calculation thereof, such evidence as Lender may reasonably require confirming the amount of the Harborside Proceeds and that Lender will receive payment of an amount equal to such Harborside Proceeds concurrently with the closing of the related sale, disposition, financing or refinancing.

(J) Other . Borrower shall provide, or cause to be provided to Lender, upon Lender’s request, with true and complete copies of all documents that would constitute Approval Matters were an Event of Default then existing and true and complete copies of all Senior Loan Documents.

5.2 Existence; Qualification . Borrower will, and Borrower will cause each other member of the DCTRT Group to, at all times preserve and keep in full force and effect its existence, and all rights and franchises, if any, material to their respective businesses. Borrower will continue, and will cause each other member of the DCTRT Group to continue, to be qualified in all jurisdictions in which such Person is required to qualify.

5.3 Payment of Impositions . Subject to Section 2.6, Borrower shall pay any and all taxes, charges, filing, registration and recording fees, excises and levies imposed upon Lender by reason of its interests in, or measured by amounts payable under the Loan Documents (other than income, franchise and doing business taxes), and shall pay all stamp taxes and other taxes required to be paid on any of the Loan Documents. If Borrower fails to make such payment within five (5) Business Days after notice thereof from Lender, Lender may (but shall not be obligated to) pay the amount due, and Borrower shall reimburse Lender on demand for all such advances which will bear interest at the Default Rate.

 

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5.4 Insurance .

(A) Borrower shall at all times provide, maintain and keep in force or cause to be provided, maintained and kept in force, at no expense to Lender, the policies of insurance with respect to the Properties and Property Owners required pursuant to the Senior Loan Documents.

(B) All insurance policies required pursuant to this Agreement shall be endorsed to provide that: (i) Borrower, TRT Holdco, TRS Holdco and Lender, their successors and/or assigns, are named as additional named insureds on all liability coverage, with the agreement that any obligation imposed upon the insureds (including the liability to pay premiums) shall be the sole obligation of Property Owners and not of any other insured; (ii) the interests of Lender shall not be invalidated by any action or inaction of Property Owners, Borrower, TRT Holdco, TRS Holdco or any other Person, and such policies shall insure Lender regardless of any breach or violation by Borrower, Property Owners, TRT Holdco, TRS Holdco or any other Person of any warranties, declaration or conditions in such policies; (iii) the insurer under each such policy shall waive all rights of subrogation against Lender, any right to set-off and counterclaim and any other right to deduction, whether by attachment or otherwise; (iv) such insurance shall be primary and without right of contribution of any other insurance carried by or on behalf of Lender or Senior Lender; (v) if such insurance is canceled for any reason whatsoever, including nonpayment of premium or, if any substantial modification, change or reduction is made in the coverage which affects the interests of Lender, such cancellation, modification, change or reduction in coverage shall not be effective as to Lender until thirty (30) days after receipt by Lender of written notice sent by registered mail from such insurer; and (vi) any such insurance shall be endorsed to provide in as much as the policy is written to cover more than one insured, all terms, conditions, insuring agreements and endorsements with the exception of limits of liability, shall operate in the same manner as if there were a separate policy covering each insured.

(C) Borrower shall deliver to Lender a certificate evidencing each insurance policy, and, if requested by Lender, a copy of each insurance policy. Renewal certificates (and, if requested by Lender, copies of policies) should be provided no later than fifteen (15) days prior to the expiration of each policy. Borrower shall deliver a copy of a certificate evidencing renewed policy or policies, marked “premium paid,” or accompanied by such other evidence of payment reasonably satisfactory to Lender with standard non-contributory mortgagee clause in favor of and acceptable to Lender. No insurance policy may provide for assessments to be made against Lender or Lender’s servicer, if any. Lender shall not, by the fact of approving, disapproving, accepting, preventing, obtaining or failing to obtain any insurance, incur any liability for or with respect to the amount of insurance carried, the form or legal sufficiency of insurance contracts, solvency of insurance companies, or payment or defense of lawsuits, and Borrower hereby expressly assumes full responsibility therefore and all liability, if any, with respect thereto. If Borrower fails to provide (or cause Property Owners to provide) to Lender the policies of insurance required by this Section 5.4 or any other Loan Documents, Lender may (but shall have no obligation to) procure such insurance or single-interest insurance for such risks and Borrower will pay all premiums thereon promptly upon demand by Lender, and until such payment is made by Borrower, the amount of all such premiums shall bear interest at the Default Rate and shall constitute additions to the Obligations.

 

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5.5 Inspection; Lender Meeting . Borrower shall, at reasonable business hours and upon reasonable prior notice upon request from Lender and subject to the rights of tenants under applicable Leases, permit (and cause to be permitted) Lender’s designated representatives to (a) visit, examine, audit, and inspect the Properties, (b) examine, audit, inspect, copy, duplicate and abstract Borrower’s, TRT Holdco’s, TRS Holdco’s, Intervening Entities’ and Property Owners’ financial, accounting and other books and records, and (c) discuss Borrower’s, Property Owners’, Intervening Entities’, TRT Holdco’s, TRS Holdco’s and the Properties’ affairs, finances and business with Property Owners’, Intervening Entities’, TRT Holdco’s, TRS Holdco’s and Borrower’s officers, senior management, representatives, independent public accountants and agents. Borrower shall cause its books and records and the books and records of Property Owners and Intervening Entities to be maintained at the principal offices of such Persons located at 518 17 th Street, Suite 1700, Denver, CO 80202. Borrower will not change (or permit Intervening Entities or Property Owners to change) its principal offices or the location where its books and records are kept without giving at least thirty (30) days’ advance notice to Lender. Borrower shall pay Lender’s reasonable, actual costs and expenses incurred in connection with such annual audit if an Event of Default has occurred. All audits, inspections and reports shall be made for the sole benefit of Lender. Neither Lender nor Lender’s auditors, inspectors, representatives, agents or contractors assumes any responsibility or liability (except to Lender) by reason of such audits, inspections or reports. Borrower will not rely upon any of such audits, inspections or reports. The performance of such audits, inspections and reports will not constitute a waiver of any of the provisions of the Loans Documents. Borrower shall cooperate, from time to time, with Lender and use reasonable efforts to assist Lender in obtaining an appraisal of the Properties (or any one or more of them). Such cooperation and assistance from Borrower shall include reasonable access to the Properties (or any one or more of them) subject to the rights of tenants under applicable Leases and upon reasonable prior notice and books and records pertaining to the Properties (or any one or more of them) for Lender and its appraiser. The appraiser performing any such appraisal shall be engaged by Lender. Borrower shall not be responsible for the expenses of any such appraisal.

5.6 Compliance with Laws . Borrower will comply and cause the Property Owners and the Properties to comply, in all material respects, with the requirements of all Legal Requirements, including Environmental Laws, and the orders and requirements of any Governmental Authority in all jurisdictions in which it is now doing business or may hereafter be doing business, the failure to comply with would be a Senior Loan Default or Senior Loan Event of Default or has, or might reasonably be expected to have, a Material Adverse Effect.

5.7 Further Assurances . Borrower shall, from time to time, at its sole cost and expense, execute and/or deliver, or cause execution and/or delivery of, such documents, agreements and reports, and perform such acts as Lender at any time may reasonably request to carry out the purposes and otherwise implement the terms and provisions provided for in the Loan Documents. Borrower shall execute any documents and take any other actions necessary to provide Lender with a first priority, perfected security interest in the Collateral. Borrower shall, at Borrower’s sole cost and expense: (i) upon Lender’s request therefore given from time to time (but not more frequently than once per calendar year unless an Event of Default then exists) pay

 

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for (a) current reports of Uniform Commercial Code, federal tax lien, state tax lien, judgment and pending litigation searches with respect to members of the DCTRT Group, and (b) current good standing and existence certificates with respect to members of the DCTRT Group; and (ii) execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary, to evidence, preserve and/or protect the Collateral at any time securing or intended to secure the Obligations, as Lender may require in Lender’s reasonable discretion. Borrower shall promptly execute, acknowledge, deliver, file or do, at its sole cost and expense, all acts, assignments, notices, agreements or other instruments as Lender may require in order to effectuate, assure, convey, secure, assign, transfer and convey unto Lender any of the rights granted by the Loan Documents and to more fully perfect and protect any assignment, pledge, lien and security interest confirmed or purported to be created under the Loan Documents or to enable Lender to exercise and enforce their rights and remedies hereunder, in respect of the Collateral.

5.8 Property Owners, TRT Holdco and TRS Holdco . Borrower shall cause Property Owners and the other members of the DCTRT Group to maintain their legal existence. Borrower shall cause Property Owners to perform all of Property Owners’ material obligations under the Senior Loan Documents as and when required pursuant to the Senior Loan Documents. Subject to the terms of the Senior Loan Documents, Borrower shall cause Property Owners and the Intervening Entities to timely make sufficient distributions of their respective funds (to the extent available) to enable Borrower to comply with its obligations under the Loan Documents. If no Senior Loan exists, Borrower will, if requested by Lender, promptly execute and deliver to Lender such amendments to this Agreement as Lender may reasonably require to, in effect, incorporate the “affirmative” and “negative” covenants and agreements to set forth in the then most recently existing Senior Loan Documents into this Agreement.

5.9 Special Purpose Bankruptcy Remote Entity . Borrower shall, at all times, be a Special Purpose Bankruptcy Remote Entity.

SECTION 6

INTENTIONALLY OMITTED

SECTION 7

NEGATIVE COVENANTS

Borrower covenants and agrees that from the date hereof and so long as this Agreement shall remain in effect or the Note remains outstanding, Borrower shall comply with all covenants and agreements in this Section 7.

7.1 Indebtedness . Borrower will not directly or indirectly create, incur, assume, guaranty, or otherwise become or remain directly or indirectly liable (or permit any Property Owners (except with respect to a Senior Loan and other Indebtedness permitted under the Senior Loan Documents) or Intervening Entities to become so liable) with respect to any Indebtedness except Permitted Indebtedness and Indebtedness that is being contested in good faith and do not become a Lien on the Property or Collateral.

 

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7.2 Liens and Related Matters . Borrower will not directly or indirectly create, incur, assume or permit to exist (or allow Intervening Entities or Property Owners to directly or indirectly create, incur, assume or permit to exist) any Lien on or with respect to the Properties (other than, in the case of Property Owners, Liens created pursuant to the Senior Loan Documents or otherwise permitted under the Senior Loan Documents), the Collateral or any membership, partnership or other ownership interest in the Property Owners and the Intervening Entities, whether now owned or hereafter acquired, or any income or profits therefrom in each instance unless with respect to a Lien on a Property not permitted under the Senior Loan Documents such Lien is, in compliance with the Senior Loan Documents, being contested in good faith or has been bonded over.

7.3 Senior Loan Documents .

(A) Without Lender’s consent, Borrower shall not (and shall not permit Intervening Entities and Property Owners to) (i) amend, modify or waive the performance of material obligations with regard to the Senior Loan Documents or agree to any Modification, or (ii) request a waiver or consent from, the Senior Lender or any party to, or issuer of any of the Senior Loan Documents without at least ten (10) days’ advance notice to Lender. Notwithstanding the foregoing provisions of this Agreement, any Modification of the Senior Loan Documents that is a Permitted Modification is not an Event of Default and shall be permitted without Lender’s consent. A “ Permitted Modification ” means any amendment, modification, waiver, restatement or analogous documentation (each a “ Modification ”) that amends, modifies, waives, supplements, extends, compromises, renews or restates, all or any of the Senior Loan Documents with respect to which (a) after giving effect to any such amendment, modification, waiver, restatement or analogous documentation, the Debt Service Coverage Ratio is not less than the Debt Service Target Ratio; (b) the Modification is on market terms; (c) the Loan is not further subordinated to the Senior Loan; (d) the principal amount of the Senior Loan shall not be increased except to the extent such excess is, on a dollar-for-dollar basis paid to Lender and applied to the principal of the Loan; (e) none of the Borrower or Intervening Entities shall have guaranteed any such Senior Loan or incurred any Indebtedness; (f) Borrower shall have given Lender not less than ten (10) days advance notice of Modification, which advance notice shall be accompanied by a true and complete copy of the Modification; and (g) concurrently with the effectiveness of the Modification in question, Borrower shall have provided Lender with a certificate of an Authorized Officer that such Modification is a Permitted Modification. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable third party attorneys’ fees) in confirming that a Modification is a Permitted Modification.

(B) Borrower will not acquire, or permit any member of the DCTRT Group or any of their respective Affiliates to acquire the Senior Loan, any portion of the Senior Loan, any direct or indirect participation or other interest in or Lien upon the Senior Loan or holder thereof or any direct or indirect ownership interest in any Senior Lender.

7.4 Restriction on Fundamental Changes . Borrower will not (and Borrower will not permit Property Owners and Intervening Entities to): (1) amend, modify or waive in any material respect any term or provision of its Organizational Documents, except for Permitted Organization Modifications, (2) liquidate, wind-up or dissolve itself (or suffer any liquidation or

 

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dissolution); (3) hereafter acquire by purchase or otherwise all or any part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person; or (4) allow any ownership interests in Property Owners or Intervening Entities to become certificated or “securities” (as defined in the UCC). Borrower will not establish any Subsidiaries (other than TRT Holdco, TRS Holdco, Intervening Entities and Property Owners) and will not permit TRT Holdco, TRS Holdco or Property Owners to establish any Subsidiaries, except, in the case of TRT Holdco, TRS Holdco, the Intervening Entities, and, in the case of the Intervening Entities, the Property Owners. Borrower will not permit any member of the DCTRT Group to liquidate, wind-up or dissolve itself. Borrower shall give Lender at least ten (10) Business Days (or such lesser period as may be required by the Senior Loan Documents, but in no event less than five (5) Business Days) advance notice of the effectiveness of any amendment or modification of Organizational Documents with such notice of such amendment or modification accompanied by a true and complete copy of such amendment or modification, and an certificate of an Authorized Officer certifying that such amendment or modification is a Permitted Organizational Modification. Borrower will not become or permit any other Loan Party to become an Embargoed Person.

7.5 Transactions with Affiliates . Borrower shall not directly or indirectly enter into or permit to exist (or permit Property Owners or Intervening Entities to directly or indirectly enter into or permit to exist) any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any director, officer, employee or Affiliate of any member of the DCTRT Group, except transactions in the ordinary course of and pursuant to the reasonable requirements of the business of the applicable of Borrower, Intervening Owners, and Property Owners and upon fair and reasonable terms which are fully disclosed to Lender and are no less favorable to Borrower than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate, director, officer or employee of Borrower, which do not violate the provisions of any Organizational Documents of such Person and which are not a Senior Loan Default or Senior Loan Event of Default.

7.6 Use of Lender’s Name . Borrower shall not use (or permit any member of the DCTRT Group or any of their respective Affiliates to use) the names of Lender or any of Lender’s Subsidiaries or Affiliates in connection with the development, marketing, leasing, use and operation of the Properties. Borrower shall not disclose or permit (or permit any member of the DCTRT Group or any of their respective Affiliates to use or permit) to disclose any of the terms and conditions of the Loan to any Person except (a) to the extent disclosed in the Loan Documents and the Senior Loan Documents, (b) to the extent such disclosure is required pursuant to the Loan Documents, applicable Legal Requirements or applicable legal process or (c) to the extent Lender consents to such disclosure.

7.7 ERISA . Borrower shall not engage in any transaction which would cause the Obligations or any action taken or to be taken under this Agreement or the other Loan Documents (or the exercise by Lender of any of its rights under the Loan Documents) to be a non-exempt prohibited transaction under ERISA.

 

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7.8 Due on Sale or Encumbrance .

(A) Without Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, none of the Property Owners, TRT Holdco, TRS Holdco, Intervening Entities, Borrower or any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in the Borrower (at each and every tier or level of ownership) shall, or permit other Persons to, Transfer (whether or not for consideration or of record) all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco, Borrower or Collateral or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner or Collateral; (2) in any Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity or Borrower; or (3) at each and every tier or level of ownership, in Borrower’s, TRT Holdco, TRS Holdco’s, Intervening Entities’ or Property Owners’ direct or indirect partners, members, shareholders, beneficial or constituent owners including any owners of the direct or indirect owners of any direct or indirect interests in any such constituent owners, including (a) an installment sales agreement for a price to be paid in installments; (b) a sale, assignment or other transfer of, or the grant of a security interest in, Property Owners’ right, title and interest in and to any Leases or any rents other than pursuant to the Senior Loan Documents or as permitted under this Agreement; (c) any direct or indirect voluntary or involuntary sale of any ownership interest in any Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity, Borrower or other Person directly or indirectly owning any direct or indirect interest in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower or any Person owning a direct or indirect interest in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower (by operation of law or otherwise) of its direct or indirect controlling interests in Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity or Borrower. Notwithstanding the foregoing, the following shall not be deemed to be prohibited under this Section 7.8: (i) Transfers of direct or indirect ownership interests in Borrower so long as no Change of Control occurs by virtue of any such Transfers and no new equity invested in Borrower, Property Owner or any Intervening Entity in connection with such Transfer is paid to the original owner of the interest transferred; (ii) a sale or conveyance of a Property to a Person that is not a member of the DCTRT Group or any of their respective Affiliates (except and to the extent a sale to an Affiliate is a Permitted Affiliate Sale of a Property) so long as such sale or transfer complies with Section 7.8(B); (iii) Liens granted to secure a Senior Loan that is a Permitted Refinancing Loan; (iv) any Transfer, sale, assignment or issuance, from time to time, of (a) any securities in DCTRT, or (b) any operating partnership units in Carveout Guarantor, provided, however, that DCTRT and Carveout Guarantor shall continue to (x) Control directly or indirectly, the Borrower and the day to day operations of each Property on the date of (and, after giving effect to) such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower; (v) any Transfer, sale, assignment, or issuance from time to time, of all or substantially all of the shares of stock or assets in DCTRT or Carveout Guarantor; (vi) any Transfer by operation of law resulting from the

 

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merger, consolidation, or non-bankruptcy reorganization, of DCTRT or Carveout Guarantor; (viii) the listing of the securities in DCTRT or Carveout Guarantor on a national securities exchange; (ix) the conversion of DCTRT or Carveout Guarantor, or any subsidiary thereof (excluding Borrower, any Intervening Entity and any Property Owner), into an “open end fund”, or (x) a sale, issuance or Transfer of shares or other securities of DCTRT or any of its affiliates (excluding Borrower, any Intervening Entity and any Property Owner) which are listed on any national securities exchange. Borrower acknowledges that Lender has examined and relied on the experience of the DCTRT Group and their general partners, members, principals and beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan and will continue to rely on such ownership of the Properties and Collateral, Property Owners, Intervening Entities, TRT Holdco, TRS Holdco and Borrower as a means of maintaining the value of the Collateral as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties and Collateral so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Collateral. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Loan immediately due and payable upon any Default under this Section 7.8.

(B) Notwithstanding Section 7.8(A) to the contrary, a Transfer that is a Permitted Sale of a Property shall not be an Event of Default. A “ Permitted Sale of a Property ” is a Sale of a Property that (a) is an all-cash sale; (b) does not result in and after giving effect to such Sale of a Property there does not exist, a Senior Loan Default or Senior Loan Event of Default; (c) with respect to which the Applicable Minimum Senior Release Price is paid to the Senior Lender and applied to the principal balance of the Senior Loan; (d) funds in an amount equal to the Mezzanine Release Payment Amount are concurrently with the closing of such Sale of a Property paid to Lender (to be applied to the Obligations in accordance with Section 2.7); (e) the buyer in such Permitted Sale is not a member of the DCTRT Group or any of their respective Affiliates unless such Sale of a Property is effected in connection with a financing of the applicable Property and Borrower provides a certificate of Borrower to the effect that such Sale of a Property is to a member of the DCTRT Group (but not a Property Owner, Intervening Entity or Borrower) in order to effect a refinancing (such Sale of a Property, a “ Permitted Affiliate Sale of a Property ”); (f) Borrower shall have given Lender not less than ten (10) Business Days advance notice of such Sale of a Property; (g) Borrower shall, not later than three (3) Business Days prior to the closing of such Sale of a Property, have provided Lender with a true and complete copy of the purchase and sale agreement (or analogous document) (such agreement, the “ Sale Agreement” ) and all amendments thereto, the executed closing and disbursement statement for such Sale of a Property, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Net Sales Proceeds of such Sale of a Property and the calculation thereof, such evidence as Lender may reasonably require confirming the amount of the Mezzanine Release Payment Amount, any escrow agreement executed to facilitate such Sale of a Property and irrevocable instructions to such escrowee to disburse the Net Sale Proceeds directly to Lender and a true and complete copy of all documents provided to the Senior Lender in connection with such Sale of a Property, related release of a Lien, prepayment and/or defeasance and (h) concurrently with the closing of the Sale of a Property in question, Borrower shall have provided Lender with a certificate of an Authorized Officer that such Sale of a Property is a Permitted Sale of a Property. Borrower shall pay Lender’s reasonable and actual

 

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out-of-pocket expenses (including reasonable and actual out-of-pocket attorneys’ fees) in confirming that a Sale of a Property is a Permitted Sale of a Property and the correct amount of the Applicable Minimum Senior Release Price and Net Sales Proceeds. To the extent that any Net Sales Proceeds are deposited into escrow or held back as contemplated in the definition of Net Sales Proceeds, such Net Sales Proceeds shall be paid to Lender concurrently with their release from escrow or holdback if and to the extent they are released to Borrower.

(C) Notwithstanding Section 7.8(A) to the contrary, a Refinancing that is a Permitted Refinancing shall not be an Event of Default. A “ Permitted Refinancing ” is a Refinancing that (a) satisfies or defeases, in full, the Senior Loan being refinanced (and, in each such case, the Liens securing such Senior Loan are released or defeased and, in connection with a defeasance, none of the Borrower, Intervening Entities or Property Owners shall be an obligor of the defeased loan after such defeasance); (b) is documented on documents the terms, provisions and conditions of which are on then market terms; (c) the principal amount of which does not exceed the principal amount of the Senior Loan being refinanced except to the extent such excess is paid, dollar-for-dollar, to Lender to reduce the principal of the Loan; (d) all Net Refinancing Proceeds are concurrently with the closing of such Refinancing paid to Lender; (e) the lender and its participants in such Refinancing is not Borrower, TRT Holdco, TRS Holdco, DCTRT, a Property Owner or any Affiliate of such Persons; (f) after giving effect to the borrowing of the full amount of the Refinancing in question, the Debt Service Coverage Ratio is not less than the Debt Service Coverage Target Ratio; (g) the Loan is not further subordinated to such Senior Loan; (h) the applicable Senior Lender providing the Refinancing shall have entered into an intercreditor agreement affording the Lender substantially the same rights (and not imposing any additional material obligations or restrictions) as it has under the Intercreditor Agreement (and, if such intercreditor agreement affords such rights and does not impose material additional obligations or restrictions, Lender will execute and deliver such intercreditor agreement); (i) neither Borrower nor Intervening Entities shall have guaranteed any such Senior Loan or incurred any Indebtedness; (j) Borrower shall have given Lender not less than ten (10) Business Days advance notice of such Refinancing; (k) Borrower shall, not later than five (5) Business Days prior to the closing of such Refinancing, have provided Lender with a true and complete copy of the Senior Loan Documents pertaining to such Refinancing, the executed closing and disbursement statement for such Refinancing, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Net Refinancing Proceeds of such Refinancing and the calculation thereof, any escrow agreement executed to facilitate such Sale Refinancing and irrevocable instructions to such escrowee to disburse the Net Refinancing Proceeds directly to Lender; and (l) concurrently with the closing of the Refinancing in question, Borrower shall have provided Lender with a certificate of an Authorized Officer that such Refinancing is a Permitted Refinancing, which shall, among other things, set forth a calculation the Debt Service Coverage Ratio. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable and actual out-of-pocket attorneys’ fees) in confirming that a Refinancing is a Permitted Refinancing and the correct amount of the Net Refinancing Proceeds. To the extent that any Net Refinancing Proceeds of a Permitted Refinancing are not disbursed at the closing of such Permitted Refinancing, such Net Refinancing Proceeds shall be paid to Lender concurrently with their disbursement (for the avoidance of debt proceeds released following the applicable closing by the applicable lender that are to be applied to costs and expenses of the operation or improvement of a Property shall not be considered Net Refinancing Proceeds for purposes of this sentence).

 

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(D) Borrower will not acquire or permit any Property Owner or Intervening Entity to acquire any real estate. Borrower will not invest or permit any Intervening Entity to invest in any other Person except, in the case of Borrower, an investment in TRT Holdco or TRS Holdco, and, in the case of an Intervening Entity, an investment in another Intervening Entity or a Property Owner. Borrower will not establish or permit a Property Owner or an Intervening Entity to establish any subsidiaries except, in the case of an Intervening Entity, those subsidiaries of an Intervening Entity disclosed pursuant to Section 4.1.

(E) Notwithstanding anything to the contrary contained herein, TRS Holdco may Transfer its interest in any Intervening Entity to TRT Holdco, and TRT Holdco may Transfer its interest in any Intervening Entity to TRS Holdco, at any time, so long as (i) Borrower provides not less than thirty (30) days advance notice to Lender of such Transfer, (ii) such Transfer is permitted under the Senior Loan Documents and the Organizational Documents of the transferor and the transferee, (iii) not later than the effective date of the transfer, Borrower provides Lender with a true and complete copy of the document transferring such interest and (iv) not later than the effective date of the transfer, Borrower provides Lender with a certificate of an Authorized Officer that such transfer complies with this Section 7.8(E).

(F) Notwithstanding anything to the contrary contained herein, Borrower may cause the Transfer of ownership interests in iStar NG LP to a wholly-owned subsidiary of Companion Borrower (collectively, the “ Northrop Transfer ”), at any time on or prior to ninety (90) days following the Closing Date, so long as (i) such Transfer is permitted under the Senior Loan Documents and the Organizational Documents of the transferor and the transferee, (ii) not later than the effective date of the transfer, Borrower provides Lender with a true and complete copy of the document transferring such interest, (iii) not later than the effective date of the transfer, Borrower provides Lender with a certificate of an Authorized Officer that such transfer complies with this Section 7.8(F), and (iv) Borrower prepays the loan by an amount equal to the Northrop Transfer Payment to Lender simultaneously with the Northrop Transfer.

7.9 Payments; Distributions . Borrower shall not pay any distributions, dividends or other payments or return any capital to any of its respective partners, members, owners or shareholders or any other Affiliate or make any distribution of assets, rights, options, obligations or securities to any of its respective partners, members, shareholders or owners or any other Affiliate (individually, or collectively, a “ Distribution ”) unless (a) on the date of the proposed Distribution, and after giving effect to the subsequent Distribution, no monetary Default, material non-monetary Default, Event of Default, monetary Senior Loan Default, material non-monetary Senior Loan Default or Senior Loan Event of Default exists; and (b) Borrower is not “insolvent” (as defined in the Bankruptcy Code) and will not be rendered insolvent by virtue of such Distribution.

7.10 Approval Matters . Without waiving any Event of Default, if an Event of Default exists, Borrower will not take, or permit to be taken, any Approval Matters without Lender’s consent.

7.11 Interest Rate Protection Agreement . Borrower shall not obtain or maintain any Interest Rate Protection Agreement that is not an interest rate cap agreement.

 

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SECTION 8

CASUALTY AND CONDEMNATION

After the happening of any casualty or condemnation to any Property or any part thereof, Borrower shall give prompt notice thereof to Lender. All compensation, proceeds, damages, claims, insurance recoveries, rights of action and payments which a Property Owner may receive or to which it may become entitled with respect to any Property or any part thereof as a result of any casualty or condemnation (the “ Proceeds ”), shall be paid over in and applied in accordance with the Senior Loan Documents. To the extent a Property Owner receives Proceeds that are not applied to the costs of restoration and/or repair, Borrower will, subject to the terms and provisions of the Senior Loan Documents, cause such Proceeds to be disbursed directly to Lender, and Lender shall apply any such Proceeds, to the payment or prepayment of the Obligations. Any application of the Proceeds or any portion thereof to the Obligations shall not be construed to cure or waive any Default or Event of Default or invalidate any act done pursuant to any such Default or Event of Default. To the extent Property Owner utilizes Proceeds for restoration, Borrower shall cause the applicable Property Owner to satisfy the applicable conditions for disbursement set forth in the Senior Loan Agreement and will comply with the applicable requirements regarding restoration set forth in the Senior Loan Agreement (in each instance, unless waived) and keep Lender reasonably apprised of the status of such restoration upon Lender’s request. Borrower shall cause Property Owner to satisfy all conditions required to utilize Proceeds for restoration pursuant to the Senior Loan Documents (in each instance, unless waived).

SECTION 9

DEFAULT, RIGHTS AND REMEDIES

 

9.1 Event of Default . “ Event of Default ” means the occurrence or existence of any one or more of the following:

(A) Payment . Failure of Borrower to pay (i) on the Maturity Date, the outstanding principal of, accrued interest in, and other Indebtedness owing pursuant to the Agreement, the Note and the other Loan Documents; (ii) within five (5) days after the due date, any installment of principal or interest due under the Loan Documents; or (iii) within five (5) days after written notice from Lender, any other amount due under the other Loan Documents.

(B) Senior Loan . The occurrence of a Senior Loan Event of Default.

(C) Breach of Representation and Warranty . Any representation, warranty, certification or other written statement made by a Loan Party in any Loan Document or in any certificate given to Lender by Borrower in writing pursuant or in connection with any Loan Document (other than occurrences described in other provisions of this Section 9.1 for which a different grace or cure period is specified or which constitute immediate Events of Default) is false in any material respect on the date made which remains uncured for five (5) Business Days after notice, but no grace or curative period will apply if the representation, warranty, certification or other statement was known by a Loan Party to be false when made or deemed made.

 

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(D) Other Defaults Under Loan Documents . A Default by Borrower shall occur in the performance of or compliance with any term contained in this Agreement or the other Loan Documents and such default is not remedied or waived within sixty (60) days after the giving by Borrower of notice from Lender of such default (other than occurrences described in other provisions of this Section 9.1 for which a different grace or cure period is specified or which constitute immediate Events of Default); provided , however , that if such default cannot be remedied with reasonably diligent effort within a period of sixty (60) days, but is susceptible to cure, such longer period as Borrower may reasonably need to remedy such default, if Borrower is proceeding with diligent effort to remedy such default. The rights to notice and cure periods granted herein shall not be cumulative with any other rights to notice or a cure period in any other Loan Document and the giving of notice or a cure period pursuant to this section shall satisfy any and all obligations of Lender to grant any such notice or cure period pursuant to any of the Loan Documents.

(E) Involuntary Bankruptcy; Appointment of Receiver, etc. (1) A court enters a decree or order for relief with respect to any member of the DCTRT Group in an involuntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law; or (2) the continuance of any of the following events for one hundred twenty (120) days unless dismissed, bonded or discharged: (a) an involuntary case is commenced against any member of the DCTRT Group under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or (b) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any member of the DCTRT Group or over all or a substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed for any member of the DCTRT Group for all or a substantial part of the property of any member of the DCTRT Group; or

(F) Voluntary Bankruptcy; Appointment of Receiver, etc. (1) An order for relief is entered with respect to any member of the DCTRT Group or any member of the DCTRT Group commences a voluntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or (2) any member of the DCTRT Group makes any assignment for the benefit of creditors; or (3) partners, directors, shareholders, manager or members in any member of the DCTRT Group adopts any resolution or otherwise authorizes action to approve any of the actions referred to in this Section 9.1(F); or

(G) Governmental Liens . Any lien, levy or assessment is filed or recorded with respect to or otherwise imposed upon all or any part of the Collateral by the United States or any department or instrumentality thereof or by any state, county, municipality or other governmental agency and such lien, levy or assessment is not stayed, vacated, paid, discharged or insured or bonded over within sixty (60) days;

 

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(H) Judgment and Attachments . Any money judgment, writ or warrant of attachment, or similar process (other than those described in Section 9.1(G)) that has, or, might reasonably be expected to have, a Material Adverse Effect (not adequately covered by insurance as to which the insurance company has acknowledged coverage) is entered or filed against any member of the DCTRT Group and remains undischarged, unvacated, unbonded, uninsured or unstayed for a period of sixty (60) days or in any event later than five (5) days prior to the date of any proposed sale thereunder;

(I) Dissolution . Any order, judgment or decree is entered against any member of the DCTRT Group decreeing the dissolution or split up of any member of the DCTRT Group and such order remains undischarged or unstayed for a period in excess of thirty (30) days; or

(J) Injunction . Either (i) a member of the DCTRT Group is enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business that has, or, might reasonably be expected to have, a Material Adverse Effect and such order continues for more than sixty (60) days; or (ii) any order or decree is entered by any court of competent jurisdiction directly or indirectly enjoining or prohibiting Lender or any member of the DCTRT Group from performing any of their obligations under this Agreement or any of the other Loan Documents or any of the Senior Loan Documents; or

(K) Invalidity of Loan Documents . Any of the Loan Documents for any reason, other than a partial or full release in accordance with the terms of the Loan Documents, ceases to be in full force and effect or is declared to be null and void by a court of competent jurisdiction, or any Loan Party denies that it has any further liability under any Loan Documents to which it is party, or gives notice to such effect; or

(L) Event of Default . The occurrence of an Event of Default specified elsewhere in this Agreement or in any of the other Loan Documents; or

(M) Transfer . The occurrence of a Transfer in violation of Section 7.8; or

(N) Fraud . The occurrence of any fraud with respect to the Loan or the Loan Documents by, or as directed by, any member of the DCTRT Group or any of their respective Affiliates; or

(O) Indebtedness . If Borrower, its members, TRT Holdco, TRS Holdco, Intervening Entities or Property Owners guarantees the obligations of a Person or lends money to any Person; and

(P) Special Purpose Bankruptcy Remote Entity; Special Purpose Entity . If Borrower ceases to be a Special Purpose Bankruptcy Remote Entity, the Organizational Documents of a Property Owner or Intervening Entity cease to include SPE Provisions or a Property Owner or Intervening Entity ceases to comply with the SPE Provisions in its Organizational Documents.

9.2 Acceleration and Remedies . Upon the occurrence of any Event of Default specified in Sections 9.1(E) and 9.1(F), payment of all Obligations shall be accelerated without notice, presentment, demand, protest or notice of protest and shall be immediately due and payable and, in addition, Lender may in addition to any other rights and remedies available to Lender at law or in equity or under any other Loan Documents, exercise one of more of the following rights and

 

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remedies as it, in its sole discretion, deems necessary or advisable. Upon the occurrence of any Event of Default (other than Events of Default specified in Sections 9.1(E) and 9.1(F)), Lender, in addition to any other rights or remedies available to Lender at law or in equity, or under any of the other Loan Documents, may exercise any one or more of the following rights and remedies as it, in its sole discretion, deems necessary or desirable:

(a) Acceleration . Declare immediately due and payable, without further notice, protest, presentment, notice of protest or demand, all Obligations including all monies advanced under this Agreement, the Note, the Mortgage and/or any of the Loan Documents which are then unpaid, together with all interest then accrued thereon and all other amounts then owing (including any Default Interest, or prepayment premium owed as a result of such acceleration). If payment of the Obligations is accelerated, Lender may, in its sole discretion, exercise all rights and remedies hereunder and under the Note, the Mortgage and/or any of the other Loan Documents at law, in equity or otherwise.

(b) Foreclosure . If a Foreclosure Event has occurred, exercise Lender’s rights under Section 9 of the Pledge Agreement.

(c) No Further Obligations . Terminate Lender’s obligations under this Agreement.

(d) Injunctive Relief . Institute appropriate proceedings for injunctive relief (including specific performance of the obligations of Borrower).

(e) Approvals . Have the right to consent to any Approval Matters.

(f) Put . If an Event of Default under Section 9(A)(i) has occurred, exercise Lender’s rights under the Put Agreement.

(g) Other . Exercise all rights under law or equity including institution of appropriate legal proceedings and all rights exercisable under any Loan Documents after the occurrence of an Event of Default.

9.3 Remedies Cumulative; Waivers; Reasonable Charges . All of the remedies given to Lender in the Loan Documents or otherwise available at law or in equity to Lender shall be cumulative and may be exercised separately, successively or concurrently. Failure to exercise any one of the remedies herein provided shall not constitute a waiver thereof by Lender, nor shall the use of any such remedies prevent the subsequent or concurrent resort to any other remedy or remedies vested in Lender by the Loan Documents or at law or in equity. To be effective, any waiver by Lender must be in writing and such waiver shall be limited in its effect to the condition or default specified therein, and no such waiver shall extend to any subsequent condition or default. It is agreed that (i) the actual costs and damages that Lender would suffer by reason of an Event of Default (exclusive of the attorneys’ fees and other costs incurred in connection with enforcement of Lender’s rights under the Loan Documents) or a prepayment would be difficult and needlessly expensive to calculate and establish, and (ii) the amounts of the Default Rate and the Late Charge are reasonable, taking into consideration the circumstances known to the parties at this time, and (iii) the Default Rate, the Late Charges and Lender’s reasonable attorneys’ fees and other costs and expenses incurred in connection with enforcement of Lender’s rights under the Loan Documents shall be due and payable upon Lender’s demand, and (iv) the Default Rate, Late Charges and the obligation to pay Lender’s reasonable attorneys’ fees and other enforcement costs do not, individually or collectively, constitute a penalty.

 

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9.4 Put Agreement. Lender acknowledges and agrees that a default under the Put Agreement shall not constitute a Default or an Event of Default under this Agreement or any of the other Loan Documents nor entitle Lender to exercise any remedies hereunder or thereunder.

SECTION 10

SECONDARY MARKET TRANSACTION

10.1 Secondary Market Transaction . Borrower agrees that, subject to the terms of this Section 10, Lender has the absolute right to securitize, syndicate, grant participations in, or otherwise Transfer all or any portion of the Loan (each such transaction, a “ Securitization ”). Lender may determine to Transfer some or all of the Loan or retain title to some or all of the Loan as part of a Securitization. Borrower further agrees that Lender may delegate any or all of Lender’s rights, powers and privileges to a servicer (“ Servicer ”) and Borrower shall, upon written notice from Lender, recognize the Servicer as the agent of Lender. Borrower shall, upon request from Lender, from time to time, reasonably cooperate, and Borrower shall cause any other Loan Party to reasonably cooperate in all reasonable respects in connection with a Securitization at Lender’s sole cost and expense. Such cooperation may, in Lender’s discretion, include documentation changes, changes in Organizational Documents of the Borrower (and, if such consent is required, only with the Senior Lender’s consent, the Property Owners, and Intervening Entities), changes in Payment Dates, Interest Periods, site inspections, preparation and delivery of financial information or other diligence requested by Lender provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or any Loan Party under the Loan Documents, (2) increase any costs or expenses payable by Borrower or any Loan Party under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. Such cooperation may include, in Lender’s discretion, execution of one or more promissory notes and the creation of Liens securing such notes of differing priority so long as the principal amount, weighted average interest rate, payment terms and other monetary terms of the Loan do not, in the aggregate change. Borrower will not be required to incur more than de minimis expenses or costs pursuant to this Section 10.1, except to the extent Borrower is otherwise obligated under the Loan Documents to pay such costs and expenses. Borrower will, upon request from Lender, in connection with a Securitization, enter into such acknowledgments and confirmations of the applicable assignments as Lender may reasonably request. Borrower shall, subject to the terms and provisions of this Section 10.1, use reasonable efforts to satisfy the market standards which Lender determines are reasonably required in the marketplace in connection with a Securitization. Borrower will not, pursuant to any of the provisions of this Section 10.1, incur, suffer or accept (except to a de minimis extent) (i) any lesser rights or greater obligations as are currently set forth in the Loan Documents or Borrower’s Organizational Documents or (ii) any personal liability other than as set forth in the Loan Documents. In no event will there be more than three (3) Lenders and/or participants at any one time in the aggregate as to both the Loan and the Companion Loan; provided, however, the foregoing shall not prohibit Lender from pledging, assigning or transferring its right, title and interest in the Loan to any trustee or agent for the benefit of one or more persons in connection with any bond financing, term financing or revolving credit financing (which financings may also be structured as repurchase agreements) provided to (or guaranteed, in whole or in part by) Lender (or any of Lender’s subsidiaries) by one or more lenders (or, if a repurchase facility, buyers) with a committed principal amount of at least $500,000,000.00 at origination of such financing.

 

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SECTION 11

MISCELLANEOUS

11.1 Expenses and Attorneys’ Fees . Borrower agrees to promptly pay all reasonable and actual third party fees, costs and expenses (including reasonable attorneys’ fees, court costs, cost of appeal and the reasonable fees, costs and expenses of other professionals retained by Lender) incurred by Lender in connection with the following, and all such fees, costs and expenses shall be part of the Obligations, payable on demand: (A) the documentation and closing of the financing arrangements evidenced by the Loan Documents and the Senior Loan Documents; (B) the giving or withholding of any consents, approval or permissions, disbursements of the Loan and in connection with any amendments, modifications and waivers relating to the Loan Documents and/or Senior Loan Documents requested by Borrower; (C) the review, documentation, negotiation and closing of any subordination or intercreditor agreements; (D) enforcement of this Agreement or the other Loan Documents, the collection of any payments due from any Loan Party under the Loan Documents or any refinancing or restructuring of the credit arrangements provided under the Loan Document, whether in the nature of a “workout’ or in connection with any insolvency or bankruptcy proceedings or otherwise; and (E) curing Senior Loan Defaults and Senior Loan Events of Default and payments by Lender to Senior Lender shall be deemed additional principal advances of the Loan bearing interest at the Default Rate and payable upon demand from Lender to Borrower. To the extent Lender pays all of the fees, costs and expenses described in this Section 11.1, Borrower shall reimburse Lender upon demand for such payments by Lender and such payments by Lender shall bear interest at the Default Rate from and after demand from Lender.

11.2 Certain Lender Matters . Lender may, in accordance with Lender’ customary practices, destroy or otherwise dispose of all documents, schedules, invoices or other papers, delivered by any member of the DCTRT Group to Lender unless Borrower requests, at the time of delivery, in writing, that same be returned. Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender, to grant Lender any interest in the Properties or to create any interest in the Collateral other than that of secured party. No provision in this Agreement or in any of the other Loan Documents and no course of dealing between the parties shall be deemed to create any fiduciary duty by Lender to Borrower or any other Person. All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Lender shall have the right to act exclusively in the interest of Lender and shall have no duty of loyalty, duty of care or any other duty to any member of the DCTRT Group or any other Person. By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to the Loan Documents, Lender shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or representation with respect hereto or thereto by Lender. Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner

 

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on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender or their respective attorneys, advisors, accountants, officers, representatives, directors, employees, partners, shareholders, trustees, members or managers. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates. NEITHER BORROWER NOR LENDER SHALL HAVE NO LIABILITY HEREUNDER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Borrower, Property Owner or DCTRT, or their respective creditors or property, Lender, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Lender allowed in such proceedings for the entire secured Obligations at the date of the institution of such proceedings and for any additional amount which may become due and payable by Borrower after such date. Lender shall have the right from time to time to designate, appoint and replace one or more servicers and to allow servicer to exercise any and all rights of Lender under the Loan Documents. All documents and other matters required by any of the provisions of this Agreement to be submitted or provided to Lender shall be in form and substance satisfactory to Lender. Borrower shall not be entitled to (and does hereby waive any and all rights to receive) any notices of any nature whatsoever from Lender except with respect to matters for which the Loan Documents expressly provide for the giving of notice by Lender to Borrower. In any action or proceeding brought by Borrower against Lender claiming or based upon an allegation that Lender unreasonably withheld its consent to or approval of a proposed act by Borrower which requires Lender’s consent hereunder, Borrower’s sole and exclusive remedy in said action or proceeding shall be injunctive relief or specific performance requiring Lender to grant such consent or approval.

11.3 Indemnity . In addition to the payment of expenses pursuant to Section 11.1 and the indemnification obligations set forth in other portions of this Agreement or the other Loan Documents, Borrower agrees to indemnify, pay, defend and hold Lender, its officers, directors, members, managers, partners, shareholders, participants, beneficiaries, trustees, employees, agents, representatives, successors and assigns, any subsequent holder of the Note, any trustee, fiscal agent, servicer, underwriter and placement agent, (collectively, the “ Indemnitees ”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, causes of action, suits, claims, tax liabilities, broker’s or finders fees, costs, expenses and disbursements of any kind or nature whatsoever excluding indirect, consequential and punitive damages (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, based upon any third party claims against such Indemnitees in any manner related to or arises out of (A) any breach by any Loan Party of any representation, warranty, covenant, or other agreement contained in any of

 

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the Loan Documents, (B) any Senior Loan Default or Senior Loan Event of Default, or (C) the actual or threatened presence, release, disposal, spill, escape, leakage, transportation, migration, seepage, discharge, removal, or cleanup of any Hazardous Material located on, about, within, under, affecting, from or onto any Property or any violation of any applicable Environmental Law by any member of the DCTRT Group (or their respective Affiliates) or any Property (the foregoing liabilities herein collectively referred to as the “ Indemnified Liabilities ”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined in a final order by a court of competent jurisdiction or arising with respect to Hazardous Materials determined in a final order by a court of competent jurisdiction to have been located on a Property prior to the Closing Date except to the extent resulting or arising from actions or negligent omissions of a Property Owner or its Affiliates on or after the Closing Date. Borrower shall be relieved of its obligation under clause (C) of this Section 11.3 with respect to Hazardous Materials first introduced to the Land and Improvements after either (1) foreclosure pursuant to the Pledge Agreement or (2) the delivery by Borrower to, and acceptance by, Lender or its designee of an assignment in lieu of foreclosure with respect to the Collateral. To the extent that the undertaking to indemnify, pay, defend and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. If any such action or other proceeding shall be brought against Lender, upon written notice from Borrower to Lender (given reasonably promptly following Lender’s notice to Borrower of such action or proceeding), Borrower shall be entitled to assume the defense thereof, at Borrower’s expense, with counsel reasonably acceptable to Lender; provided, however, Lender may, at its own expense, retain separate counsel to participate in such defense, but such participation shall not be deemed to give Lender a right to control such defense, which right Borrower expressly retains. Notwithstanding the foregoing, each Indemnitee shall, following notice to and consultation with Borrower, have the right to employ separate counsel at Borrower’s expense if, in the reasonable opinion of legal counsel, a conflict or potential conflict exists between the Indemnitees and Borrower that would make such separate representation advisable. Borrower shall have no obligation to indemnify an Indemnitee for damage or loss resulting from such Person’s gross negligence or willful misconduct.

11.4 Amendments and Waivers . Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement, the Note or any other Loan Document, or consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by Lender (and, with respect to any amendment or modification, unless also signed by Borrower). Each amendment, modification, termination or waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Borrower in any case shall entitle Borrower, or any other Person to any other or further notice or demand in similar or other circumstances. To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s members and others with interests in Borrower, and of the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Loan Documents, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat,

 

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reduce or affect the right of Lender under the Loan Documents to a sale of the Collateral for the collection of the obligations without any prior or different resort for collection or of the right of Lender to the payment of the obligations owing Lender on account of the Loan Documents out of the net proceeds of the Collateral in preference to every other claimant whatsoever. In addition, Borrower, for itself and its successors and assigns, waives, in the event of foreclosure pursuant to the Pledge Agreement, any equitable right otherwise available to Borrower which would require the separate sale of any of any portion of the Collateral or require Lender to exhaust its remedies against any portion of the Collateral or any combination of the Collateral before proceeding against any other portion; and further in the event of such foreclosure, Borrower expressly consents to and authorizes, at the option of Lender, the foreclosure and sale either separately of all or any portion of the Collateral. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents. No failure or delay on the part of Lender or any holder of any Note in the exercise of any power, right or privilege hereunder or under the Note or any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing under this Agreement, the Note and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. Lender shall not be under any obligation to marshal any assets in favor of any Person or against or in payment of any or all of the Obligations. To the extent that any Person makes a payment or payments to Lender, or Lender enforces its remedies or exercise its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and all Liens, if any, rights and remedies therefore, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred. Borrower agrees (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive Borrower from paying all or any portion of the principal of, premium, if any, or interest on Loan contemplated herein or in any of the other Loan Documents or which may affect the covenants or the performance of this Agreement; and Borrower (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the holders, but will suffer and permit the execution of every such power as though no such law had been enacted.

11.5 Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied (with request for confirmation) or sent by overnight courier service or United States registered mail return receipt requested, postage prepaid. Any notice so given shall be deemed effective upon delivery or on refusal or failure of delivery during normal business hours. Notices shall be addressed to the parties at the addresses specified on Schedule 11.5 or to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section 11.5.

 

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11.6 Survival of Warranties and Certain Agreements . All agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement, the making of the Loan hereunder and the execution and delivery of the Notes. Notwithstanding anything in this Agreement or implied by law to the contrary, the provisions of Sections 2.6, 11.1, 11.2, 11.3 and 11.12 shall survive the payment of the Loan, satisfaction of the Note and the termination of this Agreement. Subject to this Section 11.6, all other representations, warranties and agreements of Borrower and Lender set forth in this Agreement shall terminate upon indefeasible payment in full of the Loan and the termination of this Agreement.

11.7 Miscellaneous . Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. All covenants and agreements hereunder shall be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. The invalidity, illegality or unenforceability in any jurisdiction of any provision in or obligation under this Agreement, the Note or other Loan Documents shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Agreement, the Note or other Loan Documents or of such provision or obligation in any other jurisdiction. This Agreement is made for the sole benefit of Borrower and Lender, and no other Person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder. This Agreement, the Note, and the other Loan Documents referred to herein embody the final, entire agreement among the parties hereto and supersede any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties hereto. Borrower and Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by Borrower and Lender. If any term, condition or provision of this Agreement shall be inconsistent with any term, condition or provision of any other Loan Document, this Agreement shall control. This Agreement and any amendments, waivers, consents, or supplements may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which counterparts together shall constitute but one and the same instrument. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto.

11.8 APPLICABLE LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

 

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11.9 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns except that Borrower may not assign its rights or obligations hereunder or under any of the other Loan Documents without the written consent of Lender. Any assignee of Lender’s interest in the Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to the Loan Documents which Borrower may otherwise have against any assignor of the Loan Documents.

11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS . BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE NOTE, SUCH OTHER LOAN DOCUMENTS OR SUCH OBLIGATION. BORROWER DESIGNATES AND APPOINTS NATIONAL REGISTERED AGENTS, INC. AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY BORROWER WITH LENDER’S APPROVAL WHICH IRREVOCABLY AGREE IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO BORROWER AT ITS ADDRESS PROVIDED IN SUBSECTION 11.5 EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BORROWER AS ITS AGENT FOR SERVICE OF PROCESS REFUSES TO ACCEPT SERVICE OF PROCESS, BORROWER HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.

11.11 WAIVER OF JURY TRIAL . BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. BORROWER AND LENDER ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF BORROWER OR LENDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS

 

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TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND LENDER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

11.12 Publicity . Lender (and Lender’s Affiliates) may, subject to the applicable limitations on distribution of Confidential Information set forth in this Section 11.12, and Borrower does hereby authorize (and shall cause Property Owner, any other Loan Party, TRT Holdco and TRS Holdco to authorize) Lender (and its Affiliates) to, refer, in its sole discretion, to the Loan in tombstone advertisements and reports to investors, which references, may include use of photographs, drawings and other depictions, images of the Land and Improvements, a description of the Loan, use of Property Owner’s, TRT Holdco’s, TRS Holdco’s and Borrower’s names, and the address of the Properties. Lender hereby agrees that, without the prior written consent of Borrower, any written information relating to Property Owner or Borrower or any member of the DCTRT Group which is provided to Lender in connection with the Loan (including data and information provided pursuant to Section 5.1(F)) which is either confidential, proprietary, or otherwise not generally available to the public (but excluding information Lender has obtained independently from third-party sources without Lender’s knowledge that the source has violated any fiduciary or other duty not to disclose such information) and which has been expressly designated as such by notice to Lender from Borrower (the “ Confidential Information ”), will be kept confidential by Lender, using substantially the same standard of care in safeguarding the Confidential Information as Lender employs in protecting its own proprietary information which Lender desires not to disseminate or publish. Notwithstanding the foregoing, Confidential Information may be disseminated (a) pursuant to the requirements of applicable law; (b) pursuant to judicial process, administrative agency process or order of Governmental Authority; (c) in connection with litigation, arbitration proceedings or administrative proceedings before or by any Governmental Authority or stock exchange; (d) to Lender’s attorneys, accountants, advisors and actual or prospective financing sources who will be instructed to comply with this Section 11.12; (e) to actual or prospective trustees, assignees, pledgees, participants, agents, servicers, or securities holders in a Securitization; and (f) pursuant to the requirements or rules of a stock exchange or stock trading system on which the Securities of Lender or its Affiliates may be listed or traded. For purposes of this Section 11.12, Confidential Information will not be deemed to include the Loan amount and the other terms, conditions and provisions of the Loan Documents, the street address and common name, if any, of the Land and Improvements, the names of any Loan Party and any other member of the DCTRT Group and

 

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photographs or other depictions of the Properties. Borrower represents, warrants and covenants that each Property Owner has agreed to the foregoing. Borrower will not issue or permit to be issued any press release by Borrower or its Affiliates with respect to the Loan without Lender’s consent.

11.13 Performance by Lender/Attorney-in-Fact . In the event that Borrower shall at any time fail to duly and punctually pay, perform, observe or comply with any of its covenants and agreements hereunder or under the other Loan Documents or if any Event of Default hereunder shall exist or if any Senior Loan Default or Senior Loan Event of Default shall exist then Lender may (but shall in no event be required to) make any such payment or perform any such term, provision, condition, covenant or agreement or cure any such Event of Default Senior Loan Default or Senior Loan Event of Default. Lender shall not take action under this Section 11.13 prior to the occurrence of an Event of Default, Senior Loan Default or Senior Loan Event of Default unless in Lender’s good faith judgment reasonably exercised, such action is necessary or appropriate in order to preserve the value of the Collateral or a Property, to protect Persons or property, or Borrower, TRT Holdco, TRS Holdco or Property Owners have abandoned the Collateral, the membership interests in Property Owners, any Property or any portion thereof, as the case may be. Lender shall not be obligated to continue any such action having commenced the same and may cease the same without notice to Borrower. Any amounts expended by Lender in connection with such action shall constitute additional advances hereunder, the payment of which is additional Indebtedness, secured by the Loan Documents and shall become due and payable upon demand by Lender, with interest at the Default Rate from the date of disbursement thereof until fully paid. No further direction or authorization from Borrower shall be necessary for such disbursements. The execution of this Agreement by Borrower shall and hereby does constitute an irrevocable direction and authorization to Lender to so disburse such funds. Borrower hereby irrevocably appoints Lender, as its attorney-in-fact, coupled with an interest, with full authority in the place and stead of Borrower and in the name of Borrower or otherwise (A) during the existence of an Event of Default, Senior Loan Default or Senior Loan Event of Default in the discretion of Lender, to take any action and to execute any instrument which Lender may deem necessary to accomplish the purpose of this Agreement or any other Loan Document, including to execute and/or file, without the signature of Borrower any Uniform Commercial Code financing statements, continuation statements, or other filing, and any amendment thereof, relating to the Loan Account Collateral; (B) to give notice to any third parties which may be required to perfect Lender’s security interest in the Collateral; and (C) following the occurrence of a Foreclosure Event, to register, purchase, sell, assign, transfer, pledge or take any other action with respect to any Collateral in accordance with this Agreement or any Loan Document.

11.14 Brokerage Claims . Borrower shall protect, defend, indemnify and hold Lender harmless from and against all loss, cost, liability and expense incurred as a result of any claim for a broker’s or finder’s fee against Lender or any Person, in connection with the transaction herein contemplated, provided such claim is made by or arises through or under Borrower or is based in whole or in part upon alleged acts or omissions of Borrower. Lender shall protect, defend, indemnify and hold Borrower harmless from and against all loss, cost, liability and expense incurred as a result of any claim for a broker’s or finder’s fee against Borrower or any other Person in connection with the transaction herein contemplated, provided such claim is made by or arises through or under Lender or is based in whole or in part upon alleged acts or omissions of Lender.

 

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11.15 Agreement . THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER SHALL BE DETERMINED SOLELY FROM THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND ANY PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN LENDER AND BORROWER CONCERNING THE SUBJECT MATTER HEREOF AND OF THE OTHER LOAN DOCUMENTS ARE SUPERSEDED BY AND MERGED INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE VARIED BY ANY ORAL AGREEMENTS OR DISCUSSIONS THAT OCCUR BEFORE, CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS LOAN AGREEMENT OR THE LOAN DOCUMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

11.16 Multiple Borrowers . The parties hereto acknowledge that the defined term “Borrower” has been defined to collectively include each individual Borrower. It is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred, or (b) there has occurred a Default or Event of Default, that any such breach, occurrence or event with respect to any Borrower shall be deemed to be such a breach, occurrence or event with respect to both TRT Borrower and TRS Borrower and that both TRT Borrower and TRS Borrower need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to both TRT Borrower and TRS Borrower.

 

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Witness the due execution hereof by the undersigned as of the date first written above.

 

BORROWER:

TRT NOIP FLOATING MEZZ HOLDCO LLC, a

Delaware limited liability company

By:  

/s/ GREG MORAN

Name:  

Greg Moran

Its:  

Authorized Signer

TRS NOIP MEZZ HOLDCO LLC, a Delaware limited liability company
By:  

/s/ GREG MORAN

Name:  

Greg Moran

Its:  

Authorized Signer

LENDER :

iSTAR FINANCIAL INC., a Maryland corporation
By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Its:  

Senior VP


EXHIBIT A-1

Each TRT Property and TRT Property Owner

 

Property

  

Property Owner

2625 Shadelands Drive, Walnut Creek, CA    TRT NOIP Shadelands - Walnut Creek LP, a Delaware limited partnership
1545 & 1565/1585 Charleston Place, Mountain View, CA    TRT NOIP Charleston - Mountain View LP, a Delaware limited partnership
440 N. Fairway Drive, Vernon Hills, IL    TRT NOIP North Fairway Drive - Vernon Hills LLC, a Delaware limited liability company
161 Inverness Drive West, Englewood, CO    TRT NOIP Inverness - Englewood LLC, a Delaware limited liability company
1100 Crown Colony Drive, Quincy, MA    TRT NOIP Crown Colony - Quincy LLC, a Delaware limited liability company
7555 Colshire Drive, McLean, VA    iStar NG LP, a Delaware limited partnership


EXHIBIT A-2

Each TRS Property and TRS Property Owner

 

Property

  

Property Owner

6901 S. Havana Street, Englewood, CO    TRT NOIP South Havana - Englewood LLC, a Delaware limited liability company
17201 Waterview Parkway, Dallas, TX    TRT NOIP Waterview - Dallas LP, a Delaware limited partnership
510 Cottonwood Drive, Milpitas, CA    TRT NOIP Cottonwood - Milpitas LP, a Delaware limited partnership
5853/5863 Rue Ferrari Drive, San Jose, CA    TRT NOIP Rue Ferrari - San Jose LP, a Delaware limited partnership
One and Three Sybase Drive, Dublin, CA    TRT NOIP Dublin LP, a Delaware limited partnership
201 King Mill Court, McDonough, GA    TRT NOIP King Mill - McDonough LLC, a Delaware limited liability company
3095 Corporate Drive, DeKalb, IL    TRT NOIP Corporate Drive - DeKalb LLC, a Delaware limited liability company
300 South Salem Church Road, York, PA    TRT NOIP Salem Church - York LLC, a Delaware limited liability company
500 Business Center Drive, Stockbridge, GA    TRT NOIP Business Center - Stockbridge LLC, a Delaware limited liability company
2750 Creekside Parkway, Lockbourne, OH    TRT NOIP Creekside - Lockbourne LLC, a Delaware limited liability company
301 Apache Trail, Terrell, TX    TRT NOIP Apache Trail - Terrell LP, a Delaware limited partnership


EXHIBIT B

Legal Description of Land

(attached hereto)


301 Apache Trail, Terrell, TX

Lot 1, Block D, Metrocrest Addition, an addition to the City of Terrell, Kaufman County, Texas, according to the map or plat thereof, recorded in Cabinet 2, Envelope 356, of the Plat Records, Kaufman County, Texas.


500 Business Center Drive, Stockbridge, GA

ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 1 and 2 of the 12th District, Henry County, Georgia, and being more particularly described as follows:

TO FIND THE TRUE POINT OF BEGINNING, commence at a  1 / 2 -inch rebar found at the intersection of the northwesterly right-of-way of Eagle’s Landing Parkway (a 200-foot right-of-way) and the northeasterly right-of-way of the Norfolk & Southern Railroad (a 150-foot right-of-way); running thence along the northeasterly right-of-way of Norfolk & Southern Railroad Company, North 54 degrees 56 minutes 50 seconds West a distance of 473.05 feet to a  1 / 2 -inch rebar found; thence run North 54 degrees 59 minutes 14 seconds West a distance of 226.92 feet to a  1 / 2 -inch rebar found; thence leaving the northeasterly right-of-way of Norfolk & Southern Railroad Company, North 34 degrees 57 minutes 17 seconds East a distance of 459.10 feet to a point on the southwesterly right-of-way of Parkway Boulevard North (a 60-foot right-of-way dedicated per Deed Book 1999, Page 100 and Plat of record at Plat Book 23, Page 279, Henry County, Georgia Records); thence run along the curvature of the southwesterly right-of-way of Parkway Boulevard North, with the following calls: North 55 degrees 02 minutes 42 seconds West a distance of 67.85 feet to a point; thence run along an arc of a curve to the right having a radius of 330.00 feet a distance of 227.65 feet, said arc being subtended by a chord bearing of North 35 degrees 16 minutes 58 seconds West a distance of 223.16 feet to a point; thence run North 15 degrees 31 minutes 12 seconds West a distance of 23.51 feet to a point; thence run along an arc of a curve to the left having a radius of 40.00 feet a distance of 36.66 feet, said arc being subtended by a chord bearing North 41 degrees 46 minutes 21 seconds West a distance of 35.39 feet to a point; running thence along an arc of a curve to the right having a radius of 75.00 feet for a distance of 161.05 feet, said arc being subtended by a chord bearing North 06 degrees 30 minutes 29 seconds West a distance of 131.84 feet to a point and the TRUE POINT OF BEGINNING; from the TRUE POINT OF BEGINNING, thence leaving said right-of-way and run North 15 degrees 30 minutes 12 seconds West a distance of 4.29 feet to a point; thence run South 74 degrees 29 minutes 48 seconds West a distance of 456.91 feet to an iron pin set; thence run North 15 degrees 30 minutes 12 seconds West a distance of 469.25 feet to an iron pin set; thence run South 74 degrees 29 minutes 48 seconds West a distance of 50.00 feet to an iron pin set; thence run North 15 degrees 30 minutes 12 seconds West a distance of 138.00 feet to an iron pin set; running thence North 74 degrees 29 minutes 48 seconds East a distance of 1,945.21 feet to an iron pin set; running thence South 11 degrees 40 minutes 30 seconds East a distance of 658.72 feet to an iron pin set; thence run South 74 degrees 29 minutes 53 seconds West a distance of 1,298.59 feet to a point on the northeasterly edge of the cul-de-sac of Parkway Boulevard North; thence run along an arc of a curve to the left along said cul-de-sac having a radius of 75.00 feet an arc distance of 117.81 feet, said arc being subtended by a chord bearing North 79 degrees 59 minutes 31 seconds West a distance of 106.07 feet to a point and the TRUE POINT OF BEGINNING, containing 27.810 acres and being shown on Boundary Survey prepared for McDonald Industrial Partners II by Broward Davis & Associates, bearing seal of William E. Burton, Georgia Registered Land Surveyor No. 2567, dated November 20, 1995.

Together with a perpetual easement for the installation and use of a 24 foot wide railroad track over and across the area designated as the “Norfolk and Southern Company Proposed 24’ wide track” on the Plat prepared by William E. Burton, GA RLS. No. 2567, recorded at Plat Book 24, Page 17, Henry County, GA records.


201 King Mill Court, McDonough, GA

ALL THAT PIECE OR PARCEL OF LAND situate, lying and being in Land Lots 229 and 230 of the 7th District, Henry County, Georgia, and being more particularly described as follows:

COMMENCING at the intersection point of the southern right-of-way line of King Mill Road (under construction, 80-foot right-of-way) and the western right-of-way line of Norfolk Southern Railway Company (150-foot right-of-way), and going thence South 14 degrees 57 minutes 02 seconds East a distance of 623.60 feet to a 5/8-inch rebar, said rebar being the TRUE POINT OF BEGINNING; thence, continuing along the western right-of-way line of Norfolk Southern Railway Company, South 14 degrees 57 minutes 02 seconds East a distance of 1241.41 feet to a 5/8-inch rebar; thence, continuing along said western right-of-way South 14 degrees 57 minutes 02 seconds East a distance of 320.00 feet to a point; thence, leaving said western right-of-way, North 33 degrees 55 minutes 15 seconds West a distance of 338.38 feet to a point; thence, South 75 degrees 02 minutes 58 seconds West a distance of 1063.06 feet to a point; thence, along the eastern right-of-way of a future street (80-foot right-of-way) North 26 degrees 52 minutes 09 seconds West a distance of 713.78 feet to a point; thence, continuing along said future right-of-way on a curve to the right having a radius of 460.00 feet and an arc length of 352.44 feet and being subtended by a chord bearing of North 04 degrees 55 minutes 12 seconds West a distance of 343.88 feet to a point; thence, continuing along said future right-of-way, North 17 degrees 01 minutes 45 seconds East, a distance of 386.67 feet to a point; thence, leaving said future right-of-way North 75 degrees 02 minutes 13 seconds East, a distance of 970.79 feet to a point; thence, South 49 degrees 27 minutes 30 seconds East a distance of 150.00 feet to a 5/8-inch rebar, said rebar being the TRUE POINT OF BEGINNING.

Said piece or parcel of land containing 39.202 acres, more or less, and being shown on a Survey of Property for Southern Region Industrial Realty, Inc., prepared by Urban Engineers, Inc., dated August 25, 1994, and recorded in the Office of the Clerk of Superior Court of Henry County, Georgia, in Plat Book 23, Page 263.

Together with the covenants, easements and reservations contained in the following:

 

1. Declaration of Restrictive Covenants recorded in Deed Book 1496, page 248, Henry County, Georgia Records.

 

2. Declaration of Easements and Agreement for Common Area Maintenance, recorded at Deed Book 1496, Page 195, and re-recorded in Deed Book 1497, page 284, Henry County, Georgia Records, as amended by First Amendment to Declaration of Easements and Agreements for Common Area Maintenance for Midland Industrial Park, Henry County Georgia, recorded in Deed Book 9052, page 306, aforesaid records


3095 Corporate Drive, DeKalb, IL

Parcel No. 1:

That part of the southwest quarter of section 34, township 40 north, range 4 east of the third principal meridian, described as follows:

Commencing at the point of intersection of the north line of said quarter with the center line of First Street, said point being 675.83 feet easterly of, as measured along said north line, the northwest corner of said quarter; thence southwesterly, at an angle of 66 degrees 32 minutes 30 seconds, measured counterclockwise from said north line, along said center line, 1,155.81 feet; thence easterly, at an angle of 66 degrees 18 minutes 30 seconds, measured clockwise from said center line, 678.87 feet; thence southerly, at an angle of 95 degrees 34 minutes 40 seconds, measured counterclockwise from the last described course, 233.35 feet; thence easterly, at an angle of 95 degrees 34 minutes 40 seconds, measured clockwise from the last described course, 331.01 feet for a place of beginning; thence northerly, at right angle to the last described course, 314.80 feet; thence easterly, at an angle of 89 degrees 49 minutes 15 seconds, measured counterclockwise from the last described course, 1,234.23 feet to a line that is 180.0 feet westerly of and parallel with the east line of said southwest quarter; thence southerly, at an angle of 90 degrees 17 minutes 12 seconds, measured counterclockwise from the last described course, along said parallel line, 60.11 feet; thence easterly at an angle of 90 degrees 08 minutes 30 seconds, measured clockwise from said parallel line, 180.0 feet to the northwest corner of Terwilliger Subdivision (document no. 83-06114); thence southerly, at an angle of 90 degrees 06 minutes 32 seconds, measured counterclockwise from the last described course, along said east line, 1,534.17 feet to a point that is 80.0 feet north of the southeast corner of said southwest quarter; thence southwesterly, at an angle of 134 degrees 16 minutes 24 seconds, measured counterclockwise from the last described course, 42.33 feet; thence westerly, at an angle of 135 degrees 28 minutes 27 seconds, measured counterclockwise from the last described course, parallel with the south line of said southwest quarter, 75.0 feet; thence southerly, at an angle of 89 degrees 44 minutes 51 seconds, measured clockwise form the last described course, parallel with the east line of said southwest quarter, 50.0 feet to said south line; thence westerly, at an angle of 89 degrees 44 minutes 51 seconds, measured counterclockwise from the last described course, along said south line; 1,317.42 feet; thence north 1,359.95 feet to the place of beginning; situated in the County of DeKalb and the State of Illinois. Excepting therefrom the following described premises, to-wit:

That part of the southwest quarter of section 34, township 40 north, range 4 east of the third principal meridian, described as follows:

Beginning at a point on the south line of said southwest quarter of section 34, said point being 104.95 feet west of the southeast corner of said southwest quarter of section 34, thence south 89 degrees 56 minutes 37 seconds west along said south line 1,317.42 feet; thence north 00 degrees 00 minutes 00 seconds east 50.00 feet; thence north 89 degrees 56 minutes 37 seconds east along a line 50.00 feet north of and parallel with said south line a distance of 1,317.15 feet; thence south 00 degrees 18 minutes 32 seconds east 50.00 feet to the place of beginning; situated in the County of DeKaIb and the State of Illinois.


Parcel No. 2:

Easement pertaining to use, access, and sanitary sewer easement agreement dated July 31, 1998, and recorded December 7, 1998 as document no. 98-020970, re-recorded January 13, 1999, as document no. 99-00797 and as created by Plat of Sanitary Sewer Easement recorded as Document No. 425112.


440 N. Fairway Drive, Vernon Hills, IL

Lot 1 in First Addition to Continental Executive Parke - Phase I, being a subdivision in the North 1/2 of Section 4, Township 43 North, Range 11, East of the third principal meridian, according to the plat thereof recorded November 14, 1991 as document number 3083976 and corrected by Certificate of Correction recorded as document 3120396, in Lake County, Illinois.


2750 Creekside Parkway, Lockbourne, OH

Parcel I:

Situated in the State of Ohio, County of Franklin, Township of Hamilton, N.W. and S.W. Quarter of Section 25, Township 4, Range 22, Congress Lands and being a part of the original 139.58 acres Parcel No. One (1st Tract) and original 168.30 acres Parcel No. Two (Tract One) conveyed to Philemon J. Dill, Jr., Jac T. Dill and James E. Dill by deeds of record in Deed Volume 3480, Page 112 and Deed Book 3570, Page 212, records of the Recorder’s Office, Franklin County, Ohio and being more particularly described as follows:

Beginning at a railroad spike found at the point of intersection of the easterly right-of-way line of the Norfolk & Western Railway Company (westerly line of said original 139.58 acre tract) with the centerline of Bixby Road;

Thence North 72°14’19” East, a distance of 697.21 feet, along the centerline of Bixby Road to a railroad spike set;

Thence the following six (6) courses and distances across the said original 139.58 and 168.30 acre tracts:

1. Thence South 04°54’29” West, a distance of 552.95 feet to an iron pin set;

2. Thence South 85°05’31” East, a distance of 352.96 feet to an iron pin set;

3. Thence South 52°02’46” East, a distance of 277.20 feet to the westerly right-of-way line of a proposed road (60 feet in width)

4. Thence along said proposed right-of-way line with a curve to the left, having a radius of 380.00 feet, a central angle of 33°41’50”, the chord to which bears South 21°06’19” West, a chord distance of 220.28 feet, to an iron pin set at a point of tangency.

5. Thence South 04°15’24” West, a distance of 676.10 feet, continuing along said right-of-way line to an iron pin set;

6. Thence North 85°05’31” West, a distance of 1174.91 feet, to an iron pin set in the easterly right-of-way line of said Norfolk & Western Railway Company (westerly line of said original 168.30 tract);

Thence North 04°54’29” East, a distance of 1322.99 feet, along the said easterly right-of-way line of the Norfolk & Western Railway Company (westerly lines of said original 168.30 and 139.58 acre tracts) to the point of beginning, containing 33.980 acres, more or less.

Parcel II:

Perpetual, exclusive easement appurtenant for railroad spur line as set forth in Instrument No. 199712290176727.


300 South Salem Church Road, York, PA

All that certain lot or tract of land situated on the westerly side of South Salem Church Road, on the southerly side of Yorkrail, Inc., and north of U.S. Route 30, in West Manchester Township, County of York, Commonwealth of Pennsylvania (known as Lots 3, 6 and 9, recorded in Subdivision Plan Book PP, Page 453), as shown on a Plan prepared by Rettew Associates, Inc. dated September 13, 2001, Drawing Number 014389-01, and being more fully bounded and described as follows:

Beginning at a point, a concrete monument (found) on the southerly right-of-way line, same as the boundary line, of N/F Yorkrail, Inc., said point being the northwesterly most corner of herein described tract; thence along the southerly right-of-way line of said Yorkrail, Inc., North 78 degrees 48 minutes 20 seconds East, 1,318.48 feet to a point on the westerly right-of-way line of South Salem Church Road; thence along the westerly right-of-way line, same as the boundary line, of said South Salem Church Road, the following courses: 1) South 11 degrees 14 minutes 00 seconds East, 1,128.33 feet to a point; 2) on a curve to the right having a central angle of 34 degrees 46 minutes 06 seconds, a radius of 470.00 feet, an arc of 285.21 feet, and a chord bearing of South 06 degrees 09 minutes 03 seconds West, and a chord distance of 280.85 feet to a point; and 3) South 23 degrees 32 minutes 06 seconds West, 254.38 feet to a point, said point being the northeasterly corner of lands now or formerly of Penntown Argento Partners; thence along the northerly line of lands of said Penntown Argento Partners, South 84 degrees 29 minutes 07 seconds West, 305.83 feet to a point on line of lands now or formerly of William A. and Deanna K. Deal; thence along the easterly line of said William A. and Deanna K. Deal, North 05 degrees 30 minutes 53 seconds West, 81.67 feet to a point; thence along lands of said William A. and Deanna K. Deal and lands now or formerly of J.E. Baker Company on a curve to the right having a central angle of 07 degrees 04 minutes 23 seconds, a radius of 1,321.75 feet, an arc of 163.17 feet, chord bearing of South 88 degrees 04 minutes 07 seconds West, and a chord distance of 163.06 feet to a point; thence along lands of said J.E. Baker Company, lands now or formerly of Third Generation Associates, a 50 foot wide right-of-way, lands now or formerly of Daniel J. and Kimber Lea Miller, lands now or formerly of Ronald J. Ketner, lands now or formerly of Barry L. and Edna M. Tracey, and lands now or formerly of Keith Mikzel, North 88 degrees 23 minutes 41 seconds West, 949.79 feet to a 5/8” rebar (found) on line of lands now or formerly of Briarwood Golf Club, Inc.; thence along lands of said Briarwood Golf Club, Inc., North 05 degrees 43 minutes 29 seconds East, 1,001.36 feet to a point; thence along the same, North 10 degrees 56 minutes 01 second West, 299.25 feet to the point of beginning.

Containing 47.564 acres, more or less.

The aforementioned description being Lots 3, 6 and 9, as shown on the Final Subdivision Plan - West Manchester Business Park, as prepared by LSC Design, Inc., dated January 9, 1998 (Cadd File No. 1161FSGA) and recorded among the land records of York County in Plan Book PP, Page 453.

Together with and subject to the right to use utility, drainage and other easements as set forth in the Declaration of Protective Covenants, Restrictions and Conditions, dated May 14, 1998, recorded in Record Book 1326, Page 95.

Tax ID / Parcel No. 51-000-HG-0093C


1100 Crown Colony Drive, Quincy, MA

That certain parcel of land with the buildings and improvements thereon situated in the City of Quincy, County of Norfolk, Commonwealth of Massachusetts, shown as Lot 2B-1 on a plan entitled “Crown Colony Place, Quincy, MA, Subdivision Plan” dated February 19, 1988 by H.W. Moore Associates, Inc. recorded with Norfolk County Registry of Deeds (“Deeds”), Plan 531 of 1988, Plan Book 368 (“Lot 2B-1” and “Plan”, respectively) and more fully bounded and described as follows:

Beginning at a point on the northerly side of Crown Colony Drive at the southeasterly corner of said Lot 2B-1, and thence running

NORTH 11° 14’ 12” WEST 505.51 feet by Lot 2A as shown on the Plan; thence turning and running

NORTH 90° 00’ 00” WEST 66.55 feet as shown on the Plan; thence turning and running

NORTH 44° 01’ 34” WEST 41.70 feet, thence turning and running

NORTH 01° 56’ 50” EAST 31.26 feet, the last three courses being by Lot 2D-1 as shown on the Plan; thence turning and running

NORTH 89° 25’ 10” WEST 145.00 feet by Lot 2C-1 as shown on the Plan; thence turning and running

SOUTH 35° 56’ 56” WEST 115.84 feet by Lot 2C-1 as shown on the Plan; thence turning and running

SOUTH 74° 49’ 36” WEST 270.00 feet by Lot 2C-1 as shown on the Plan; thence turning and running

SOUTHEASTERLY, EASTERLY and NORTHEASTERLY by Crown Colony Drive, by a line curving to the left having a radius of 555.00 feet, a distance of 856.96 feet to the point of beginning.

Containing 251,726 square feet or 5.779 acres, according to the Plan.

Being a subdivision of Lot 2B, Lot 2C and Lot 2D as shown on a plan entitled “Subdivision Plan of Land ‘Crown Colony Place’ Quincy, MA” dated May 18, 1987 by Harry R. Feldman, Inc., recorded with said Deeds as Plan No. 53 of 1988 in Plan Book 364 (the “Crown Colony Plan”).

The fee in Crown Colony Drive is excepted from said Lot 2B-1.

Appurtenant Rights:

1. Declaration of Covenants, Restrictions, Development Standards and Easements by Crow Colony Realty Corp., as Trustee of Presidents’ Plaza Realty Trust, dated October 10, 1986, recorded in Book 7281, Page 352, as amended by First Amendment to Declaration of Covenants, Restrictions, Development Standards and Easements dated October 30, 1987 recorded in Book 7864, Page 493, as amended by second Amendment to Declaration of Covenants. Restrictions, Development Standards and Easements dated as of February 4, 1988, recorded on May 27, 1988


at Book 7978, Page 368, as affected by Successor of Developer under Declaration of Covenants, Restrictions, Development Standards and Easements dated January 21, 1988 and recorded in Book 7864, Page 501 and as modified by Easement Relocation Instrument dated May 26, 1988, recorded on May 27, 1988 at Book 7978, Page 466 as affected by Confirmation of Easement Location recorded in book 8066, Page 271, as further affected by Third Amendment recorded in Book 8066, Page 279, as further affected by Fourth Amendment recorded in Book 8451, Page 423, and as further affected by Fifth Amendment recorded in Book 8451, Page 430.

2. The right and easement, as set forth in a Deed dated May 26, 1988 and recorded in book 7978, Page 477 from Quincy One Associates Limited Partnership (“Quincy One”) to the Crown Colony Realty Corp., (the Quincy One Deed), in common with Quincy One and its successors and assigns, to lay, construct, reconstruct, repair, replace, operate, maintain and use sewer pipes underground, within an area located within Lots 2C-1 and 2D-1, bounded and described as follows:

Beginning at a point on the southerly boundary line of Lot 2C-1 located a distance of 68.01 feet from the westerly boundary line of Lot 2D-1, being the point of intersection of said southerly boundary line of Lot 2C-1 and that line shown on the Plan (Easement Detail) as “N 49° 27’ 39” E/55.70’” extended in a south-westerly direction a distance of 36.50 feet: thence running

NORTH 49° 27’ 39” EAST 92.20 feet to a point an the easterly boundary line of Lot 2C-1; thence turning and running

NORTH 01° 56’ 50” EAST 323.63 feet along the common boundary line of Lots 2C-1 and 2D-1; thence turning and running

NORTH 67° 42’ 23” EAST 78.53 feet across Lot 2D-1 to a point on Congress Street; thence turning and running

NORTHWESTERLY by Congress Street, by line curving to the left having a radius of 370.00 feet, a distance of 29.26 feet as shown on the Plan; thence turning and running

SOUTH 67° 42’ 23” WEST 48.18 feet to a point on the westerly boundary line of Lot 2D-1; thence continuing

SOUTH 67° 42’ 23” WEST 21.93 feet across Lot 2C-1 as shown on the Plan; thence continuing

SOUTH 01° 56’ 50” WEST 327.76 feet across Lot 2C-1, the last six distances referenced herein being as shown on the Plan; thence continuing

SOUTH 49° 27’39” WEST 106.31 feet to a point on southerly boundary line of Lot 2C-1, being the point of intersection of said southerly boundary line of Lot 2C-1 and that line shown on the Plan as S 49° 27’ 39” W/69.81” extended in a southwesterly direction a distance of 36.50 feet; thence turning and running

SOUTH 89° 25’ 10” EAST 30.41 feet along the southerly boundary line of Lot 2C-1 to the point of beginning.

Hereinafter, this is referred to as the Sewer Easement Area.


3. The right and easement as set forth in said Quincy One Deed, in common with Quincy One and its successors and assigns as the owner of Lot 2C-1, to lay, construct, reconstruct, repair, replace, operate, maintain and use a roadway for the access and egress of pedestrians and motor vehicles all within the area shown on the Plan as “24” Wide Access Easement.

4. All other rights and easements which may be appurtenant to Lot 2B-1.


6901 S. Havana Street, Englewood, CO

PARCEL A:

TRACT A:

Lot 1, Rampart Business Center Filing No. 4, County of Arapahoe, State of Colorado.

TRACT B:

Lot 2, Rampart Business Center Filing No. 4, County of Arapahoe, State of Colorado.

TRACT C:

Tract A, Rampart Business Center Filing No. 1, County of Arapahoe, State of Colorado.

PARCEL B:

A tract of land being a portion of the Northeast 1/4 of Section 27, Township 5 South, Range 67 West, of the 6th P.M., County of Arapahoe, State of Colorado, being more particularity described as follows:

Commencing at the most Westerly corner of Lot 2, Block 4, Rampart Business Center Filing No. 1 as recorded March 8, 1985 at Reception No. 2507848, said point being the Point of Beginning;

thence South 44°52’08” East along the Southwesterly line of said Lot 2, Block 4, a distance of 381.79 feet to a point of a non-tangent curve; thence along the arc of a curve to the right whose center bears North 38°41’27” West, having a delta of 31°33’41” a radius of 85.00 feet, a distance of 46.82 feet to a point of tangency; thence South 82°52’14” West, a distance of 70.00 feet to a point of curve; thence along the arc of a curve to the left having a delta of 38°42’07”, a radius of 142.37 feet, a distance of 96.17 feet to a point of tangency; thence South 44°10’07” West, a distance of 8.18 feet to a point of curve; thence along a curve to the right having a delta of 44°48’00” a radius of 97.05 feet, a distance of 75.88 feet to a point of tangency; thence South 88°58’07” West, a distance of 12.22 feet to a point of curve; thence along the arc of a curve to the left having a delta of 37°35’00”, a radius of 191.03 feet, a distance of 125.31 feet to a point of tangency; thence South 51°23’07” West, a distance of 44.00 feet to a point of curve; thence along an arc of a curve to the right having a delta of 18°00’00”, a radius of 380.00 feet, a distance of 119.38 feet to a point of tangency; thence South 69°23’07” West, a distance of 51.64 feet to a point being on the East right-of-way line of South Fulton Street; thence North 00°24’02” East and along the Easterly right-of-way of said South Fulton Street, a distance of 360.68 feet to a point of curve; thence along an arc of a curve to the right having a delta of 90°00’00”, a radius of 25.00 feet, a distance of 39.27 feet to a point of tangency, said point of tangency being on the Southerly right-of-way line of East Costilla Avenue as platted in said Rampart Business Center, Filing No. 1; thence Northerly and Easterly along the Southerly right-of-way line of said East Costilla Avenue, the following three courses:

1. South 89°35’58” East, a distance of 6.09 feet to a point of curve;


2. Along on arc of curve to the left having a delta of 45°16’10”, a radius of 345.00 feet, a distance of 272.58 feet to a point of tangency;

3. North 45°07’52” East, a distance of 49.66 feet to Point of Beginning,

County of Arapahoe,

State of Colorado.


17201 Waterview Parkway, Dallas, TX

BEING a 410,021 square feet (9.4128 acres) tract of land situated in the JOHN CLAY SURVEY, ABSTRACT NO. 313, Dallas County, Texas, also being all of Lot 1, Block A/8735, DRESSER ADDITION, an addition to the City of Dallas according to the plat thereof recorded in Volume 81203, Page 0275, Deed Records, DALLAS County, Texas, and being more particularly described as follows:

BEGINNING at a 5/8” iron rod found for corner in the West line of Waterview Road (80’ public right of way) at the Northeast corner of U.T.D. Synergy Park Phase II, as recorded by plat in Volume 86051, Page 3744, Deed Records, DALLAS County, Texas;

THENCE West departing the said West line of Waterview Road, a distance of 569.26 feet to a 5/8” iron rod found for corner in the East line of that certain tract of land conveyed to Texas A&M University in Volume 72221, Page 2873, Deed Records, DALLAS County, Texas, at the Northwest corner of said U.T.D. Synergy Park Phase II;

THENCE North 00°12’12” W, along the West line of said Texas A&M University tract, a distance of 610.00 feet to a 1/2” iron rod found for corner at the Southwest corner of U.T.D. Synergy Park Phase I, as recorded by plat in Volume 85245, Page 4873, Deed Records, DALLAS County, Texas;

THENCE East departing the East line of said Texas A&M University tract and along the South line of said U.T.D. Synergy Park Phase I, a distance of 700.00 feet to a 3/8” iron rod found for corner in the aforementioned West line of Waterview Road;

THENCE along the said West line of Waterview Road the following:

South 00°12’12” E, a distance of 223.02 feet to an “X” cut found for corner at the beginning of a curve to the right which has a central angle of 30°12’12”, a radius of 600.00 feet, and a chord which bears South 14°53’54” W - 312.64 feet;

Along said curve to the right, an arc distance of 316.29 feet to an “X” cut found for corner at the end of said curve;

South 30°00’00” W, a distance of 97.96 feet to the POINT OF BEGINNING and CONTAINING 410,021 square feet or 9.4128 acres of land.


161 Inverness Drive West, Englewood, CO

Lot 1, Inverness Subdivision Filing No. 22, County of Arapahoe, State of Colorado,

EXCEPT that portion conveyed to Arapahoe County, Colorado by Deed recorded June 6, 2000 at Reception No. B0067983, and the State of Colorado, Department of Transportation by Deed recorded December 17, 2001 at Reception No. B1217682, and Inverness Metropolitan Improvement District by Deed recorded May 30, 2007 at Reception No. B7068179.


One and Three Sybase Drive, Dublin, CA

All that certain real property situated in the County of Alameda, State of California, described as follows:

Parcel 1:

Parcel Two of Parcel Map 7580, filed September 12, 2000, in Book 252 of Parcel Maps, Pages 90 through 95, inclusive, of Official Records.

Parcel 2:

A non-exclusive easement for reciprocal vehicular and pedestrian ingress and egress and incidents thereto, over, under, along and through those areas shown as “R.I.E.E.” on Parcel One of said Parcel Map 7580, filed September 12, 2000, in Book 252 of Parcel Maps, Pages 90 through 95, inclusive, of Official Records for the benefit of Parcel Two of said Parcel Map 7580.

Parcel 3:

A non-exclusive easement for private storm drain purposes and incidents thereto, over, under, along and through those areas shown as “P.S.D.E.” on Parcel One of said Parcel Map 7580, filed September 12, 2000, in Book 252 of Parcel Maps, Pages 90 through 95, inclusive, of Official Records for the benefit of Parcel Two of said Parcel Map 7580.


1545 & 1565/1585 Charleston Place, Mountain View, CA

Parcel A:

Parcel One as shown on that certain Map entitled “Parcel Map being a resubdivision of all of Parcel “A” of Parcel Map, in Book 557 of Maps, Pages 1 and 2, and lying within the City of Mountain View, California,” which Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on July 22, 1991, in Book 628 of Maps, pages 45 to 46, inclusive.

Parcel B:

Easements for vehicular and pedestrian ingress and egress as contained in the Declaration of Covenants, Conditions and Restrictions for Charleston Place dated July 19, 1991 executed by Charleston Place Associates, a California general partnership recorded July 22, 1991 in Book L797, Page 22 Instrument No. 10989807, Official Records.

Parcel C:

Parcel Two as shown on that certain Map entitled “Parcel Map being a resubdivision of all of Parcel “A” of Parcel Map, in Book 557 of Maps, Pages 1 and 2, and lying within the City of Mountain View, California,” which Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on July 22, 1991, in Book 628 of Maps, pages 45 to 46, inclusive.

Parcel D:

Easements for vehicular and pedestrian ingress and egress as contained in the Declaration of Covenants, Conditions and Restrictions for Charleston Place dated July 19, 1991 executed by Charleston Place Associates, a California general partnership recorded July 22, 1991 in Book L797, Page 22 Instrument No. 10989807, Official Records.


5853/5863 Rue Ferrari Drive, San Jose, CA

Parcel 1, as shown on the Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on September 26, 1991, in Book 630 of Maps, Pages 39 and 40.

Assessor’s Parcel Number 678-05-057


510 Cottonwood Drive, Milpitas, CA

Parcel 1 as shown on the Parcel Map filed January 27, 1984 in Book 524 of Maps, Page 22, Records of Santa Clara County.

Assessor’s Parcel Number: 086-03-089


2625 Shadelands Drive, Walnut Creek, CA

Real property situated in the incorporated territory of the City of Walnut Creek, County of Contra Costa, State of California, described as follows:

A portion of Parcel A, as designated on the Parcel Map filed June 3, 1977, Book 55, Parcel Maps, Page 4, Contra Costa County records, described as follows:

Beginning at the northwestern corner of said Parcel A; thence, from said point of beginning, along the northern line of said Parcel A, North 62° 55’ 12” East 536.83 feet to the northeastern corner of said Parcel A; thence, from said northeastern corner, along the eastern line of said Parcel A, the following two (2) courses:

1) along the arc of a non-tangent 20.00 foot radius curve to the left, from which the center of said curve bears South 27° 04’ 48” East, through a central angle of 90° 00’ 00”, an arc distance of 31.42 feet, and

2) South 27° 04’ 48” East 400.36 feet;

thence, leaving said eastern line, South 27° 04’ 48” East 37.52 feet; thence, South 62° 55’ 12” West 469.77 feet to a point on the western line of said Parcel A; thence, along said western line, the following two (2) courses:

1) North 28° 23’ 58” West 151.00 feet, and

2) North 35° 09’ 48” West 310.00 feet to said point of beginning.

Assessors Parcel Number: 143-040-089


7555 Colshire Drive, McLean, VA (NORTHROP GRUMMAN)

Parcel B-1-A2, containing 11.7931 acres, more or less, WESTGATE INDUSTRIAL PARK, as set forth in and as shown on plat attached to Deed of Resubdivision recorded in Deed Book 12845 at Page 103, among the land records of Fairfax County, Virginia, and being more particularly described by metes and bounds as set forth below:

BEGINNING AT A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE, ROUTE 6471, WIDTH VARIES, SAID POINT BEING A NORTHWESTERLY CORNER OF THE REMAINDER OF LOT 3A, WESTGATE INDUSTRIAL PARK.

THENCE DEPARTING THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE AND WITH THE WESTERLY LINE OF THE REMAINDER OF LOT 3A S 13° 06’ 39” W 59.90 FEET TO A POINT;

77.77 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 88.00 FEET, A DELTA OF 50° 37’ 53”, AND A CHORD BEARING AND DISTANCE OF S 12° 12’ 18” E 75.26 FEET TO A POINT; S 37° 31’ 14” E 187.25 FEET TO A POINT; S 52° 28’ 46” W 20.00 FEET TO A POINT; 53.41 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 68.00 FEET, A DELTA OF 45° 00’ 00”, AND A CHORD BEARING AND DISTANCE OF S 29° 58’ 45” W 52.04 FEET TO A POINT; S 07° 28’ 46” W 80.49 FEET TO A POINT; S 37° 31’ 14” E 81.58 FEET TO A POINT; S 52° 28’ 46” W 421.54 FEET TO A POINT ON THE NORTHERLY LINE OF FAIRFAX COUNTY PARK AUTHORITY, SAID POINT BEING THE SOUTHWESTERLY CORNER OF THE REMAINDER OF LOT 3A.

THENCE WITH THE NORTHERLY AND EASTERLY LINES OF FAIRFAX COUNTY PARK AUTHORITY N 66° 15’ 44” W 823.27 FEET TO A POINT; N 33° 31’ 06” E 102.53 FEET TO A POINT; N 42° 19’ 21” E 74.39 FEET TO A POINT, SAID POINT BEING THE SOUTHEASTERLY CORNER OF PARCEL B-1-A1.

THENCE DEPARTING THE EASTERLY LINE OF FAIRFAX COUNTY PARK AUTHORITY AND WITH THE EASTERLY LINE OF PARCEL B-1-A1 N 84° 46’ 30” E 112.47 FEET TO A POINT; 50.31 FEET ALONG THE ARC OF A CIRCLE CURVING TO RIGHT, HAVING A RADIUS OF 50.00 FEET, A DELTA OF 57° 39’ 17” , AND A CHORD BEARING AND DISTANCE OF S 66° 23’ 52” E 48.22 FEET TO A POINT; S 37° 34’ 13” E 39.49 FEET TO A POINT; N 52° 25’ 47” E 234.57 FEET TO A POINT; N 37° 34’ 06” W 59.95 FEET TO A POINT; 13.09 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT HAVING A RADIUS OF 62.50 FEET, A DELTA OF 12° 00’ 13”, AND A CHORD BEARING AND DISTANCE OF N 31° 34’ 05” W 13.07 FEET TO A POINT; N 25° 34’ 05” W 3.78 FEET TO A POINT; N 52° 25’ 54” E 275.90 FEET TO A POINT; 93.21 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT, HAVING A RADIUS OF 99.50 FEET, A DELTA OF 53° 40’ 28”, AND A CHORD BEARING AND DISTANCE OF N 79° 16’ 08” E 89.84 FEET TO A POINT; N 51° 24’ 46” E 86.08 FEET TO A POINT; N 77° 22’ 06” E 100.10 FEET TO A POINT ON THE AFOREMENTIONED SOUTHERLY RIGHT-OF-WAY COLSHIRE DRIVE.


THENCE WITH THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE S 38° 35’ 14” E 8.90 FEET TO A POINT; 17.27 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT, HAVING A RADIUS OF 40.00 FEET, A DELTA OF 24° 44’ 39” , AND A CHORD BEARING AND DISTANCE OF S 26° 12’ 55” E 17.14 FEET TO A POINT; S 13° 50’ 35” E 89.89 FEET TO A POINT; 64.96 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 73.00 FEET, A DELTA OF 50° 59’ 13” AND A CHORD BEARING AND DISTANCE OF S 39° 20’ 12” E 62.84 FEET TO THE POINT OF BEGINNING AND CONTAINING 11.7931 ACRES OF LAND, MORE OR LESS.

TOGETHER WITH a non-exclusive, perpetual easement to use the Colshire Drive extension for ingress and egress in the areas identified as “Access Easement” and one (1) curb cut onto the Colshire Drive extension in the area identified as “Curb Cut” both on Exhibit 2(a) as set forth in as shown on plat attached to Cross Easement Agreement recorded in Deed Book 10990 at Page 691, the easement for ingress and egress is modified by Instrument recorded in Deed Book 15343 at page 1576, among the aforesaid land records.

TOGETHER WITH a non-exclusive 25’ utility easement as set forth in and as shown on plat identified as Exhibit 2c to Cross Easement Agreement recorded in Deed Book 10990 at Page 691, among the aforesaid land records.

TOGETHER WITH a ten foot (10’) retaining wall maintenance easement as set forth in Cross Easement Agreement recorded in Deed Book 12887 at Page 1271, among the aforesaid land records.


EXHIBIT C

Legal Description of Harborside Property

ALL that certain lot, parcel or tract of land, situate and lying in the City of Jersey City, County of Hudson and State of New Jersey being more particularly described as follows:.

PARCEL ONE:

Beginning at a point on the southerly side of Second Street Extension (52’ wide) said point being the following two (2) courses along said southerly side of Second Street Extension (52’ wide) as extended, from its intersection with the easterly side of Hudson Street (62’ wide) as extended, and running; thence

a. South 83 degrees 50 minutes 02 seconds East 195.11 feet to a bend; thence

b. South 84 degrees 47 minutes 48 seconds East 102.62 feet to a point of beginning and running; thence

 

  1. South 84 degrees 47 minutes 48 seconds East 35.65 feet along the southerly side of Second Street Extension (52’ wide) to a point of curvature; thence

 

  2. Along a curve to the right having a radius of 50.00 feet, an arc length of 60.93 feet (chord which bears South 49 degrees 53 minutes 06 seconds East 57.23 feet) to a point of reverse curvature; thence

 

  3. Along a curve to the left having a radius of 60.00 feet, an arc length of 160.03 feet along the easterly terminus of Second Street Extension (chord which bears North 88 degrees 37 minutes 11 seconds East 116.64 feet) to a point on curve, thence

 

  4. South 83 degrees 50 minutes 02 seconds East 98.17 feet to a point; thence

 

  5. South 06 degrees 09 minutes 58 seconds West 23.06 feet to a point on curve; thence

 

  6. Southerly along a curve to the right having a radius of 502.36 feet, an arc length of 195.70 feet (chord which bears South 00 degrees 42 minutes 02 seconds West 194.47 feet) to a point on curve; thence

 

  7. North 87 degrees 59 minutes 06 seconds West 204.55 feet to a point; thence

 

  8. North 75 degrees 59 minutes 06 second West 120.02 feet to a point; thence

 

  9. North 08 degrees 00 minutes 54 seconds East 231.23 feet to the point of beginning.

Being known as proposed Lot 35.01 in Block 15 as shown on a certain map entitled “Proposed Subdivision of Lots 35 & 36 in Block 15 and Lots 6 & 18 in Block 10 prepared for Mack-Cali Realty Corp. in the City of Jersey City, Hudson County, New Jersey” prepared by John Zanetakos Associates, Inc., dated January 30, 2001 and labeled Job No. 00-7628-300, and filed in the Hudson County Clerk’s office on August 29, 2001 as map number 3813.

TOGETHER WITH the easements granted to American Financial Exchange, L.L.C. in the Cross Reciprocal Easement Agreement (“CREA”) between and among American Financial Exchange, L.L.C., Plaza VIII & IX Associates, L.L.C., and Cali Harborside (Fee) Associates, L.P., dated September 29, 2003 and recorded on October 7, 2003 in the Hudson County Register’s office in Deed Book 7147, at page 157; as such easements are defined and described therein:

 

   

“Plaza X Storm Water Easement” in, to, under and within the “Plaza 8/9 Storm Water Easement Area”


   

“Plaza X Communication Easement” in, to, under and within the “Plaza 8/9 Communication Easement Area”

 

   

“Temporary Plaza X Communication Easement” in, to, under and within the “Temporary Communication Easement Area”

 

   

“Plaza X Water Easement” in, to, under and within the ‘Plaza 8/9 Water Main Easement Area”

 

   

“Plaza X Vehicular Easement” over and across the “Plaza 8/9 Vehicular Easement Area”

 

   

“Plaza X Pedestrian Easement” over and across the “Plaza 8/9 Pedestrian Easement Area”

 

   

“Plaza X Parking Easement” over, on, along and across the “Plaza 8/9 Parking Easement Areas”

PARCEL TWO:

Beginning at a point in the dividing line between Lot 48 in Block 15 as shown on the City of Jersey City Tax Assessment to the south and Lot 30 in Block 15 (Tax Map) to the north, said point of beginning being S 83°50’02” E, 48.53 feet along the dividing line between Lots 48 and 30 in Block 15 (Tax Map) from its intersection with the easterly line of Second Street Extension and running; thence

 

  1. N 06°09’58” E 1.66 feet to a point; thence

 

  2. S 83°54’00” E 50.74 feet to a point; thence

 

  3. S 05°35’27” W 23.12 feet to a point on curve; thence

 

  4. Southerly along a curve to the right having a radius of 694.85 feet an arc length of 136.45 feet, a central angle of 11°15’06” and a chord which bears S 04°19’57” E 136.23 feet to a point of compound curvature; thence

 

  5. Southerly along a curve to the right having a radius of 395.13 feet, an arc length of 60.77 feet, a central angle of 08°48’42” and a chord which bears S 05°41’57” W 60.71 feet to a point on curve; thence

 

  6. N 87°59’06” W 8.16 feet along the easterly extension of the dividing line between Lots 48 and 49 in Block 15 (Tax Map); thence the following three (3) courses along the easterly line of Lot 48 in Block 15 (Tax Map)

 

  7. Northerly along a curve to the left having a radius of 502.36 feet, an arc length of 195.70 feet, a central angle of 22°19’ 15” and a chord which bears N 00°42’02” E 194.47 feet to a point on curve; thence

 

  8. N 06°09’58” E 23.06 feet to a point on curve; thence

N 83°50’02” W 49.64 feet to a point, the point and place of beginning


EXHIBIT D

Mezzanine Minimum Release Amount

 

Property

   Location    Mezzanine Minimum Release
Amount

Alliance Data Systems

   Dallas, TX    799,195

Aetna Life Insurance Company

   Walnut Creek, CA    525,618

Abbott Medical Optics, Inc.

   Milpitas, CA    2,087,520

Arbella Capital Corporation

   Quincy, MA    1,925,665

Baxter Healthcare Corporation

   Vernon Hills, IL    1,354,620

DirecTV, Inc.

   Englewood, CO    4,802,464

Goodyear Tire & Rubber Co.

   Various    5,029,331

Google, Inc.

   Mountain View, CA    9,004,620

Northrop Grumman IT, Inc.

   Tyson’s Corner, VA    21,196,564

Sybase, Inc.

   Dublin, CA    26,127,694

Travelport International, LLC

   Englewood, CO    1,097,841

Western Digital Corporation

   San Jose, CA    983,708
       

Total Release Pricing

      74,934,840
       


EXHIBIT E

Closing Checklist

(attached hereto)

 


Schedule 4.1(A)-1

TRT Borrower’s U.S. taxpayer identification number is: 27-2866542

TRS Borrower’s U.S. taxpayer identification number is: 27-2866628

 


Schedule 4.1(A)-2

The attached organizational chart shows each Person directly owning (and/or indirectly owing five percent (5%) or more of) the ownership interests in Borrower, Holdco and Property Owners, and the direct Subsidiaries, indirect Subsidiaries, and each member of the Intervening Entities and Property Owners.

 


Schedule 4.1(A)-3

The principal place of business and chief executive office of Borrower, Intervening Entities and Property Owners is set forth below:

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202


Schedule 4.1(A)-4

Attached is a list of the correct legal name, jurisdiction of formation, organization number, type of entity (e.g., corporation, limited partnership, limited liability company, etc.), of each member of the Intervening Entities and Property Owners and also, in the case of the Property Owners, the Property owned by such Property Owner.

(attached hereto)


Please see Exhibit A-1 and Exhibit A-2 of the Loan Agreement for a list of the Property owned by each Property Owner.

 

Name of Entity

  

Jurisdiction of Formation / Type of Entity

   Organizational
Number

TRS NOIP Mezz Holdco LLC

  

Delaware limited liability company

   4831465

TRS NOIP Real Estate Holdco LLC

  

Delaware Limited Liability Company

   4831467

TRT NOIP Cottonwood - Milpitas GP LLC

  

Delaware Limited Liability Company

   4831684

TRT NOIP Rue Ferrari - San Jose GP LLC

  

Delaware Limited Liability Company

   4831685

TRT NOIP Dublin GP LLC

  

Delaware Limited Liability Company

   4831686

TRT NOIP GT Lease Holdco LLC

  

Delaware Limited Liability Company

   4831463

TRT NOIP Apache Trail - Terrell GP LLC

  

Delaware Limited Liability Company

   4831690

TRT NOIP GT LLC

  

Delaware Limited Liability Company

   4831691

TRT NOIP Waterview - Dallas LP LLC

  

Delaware Limited Liability Company

   4831673

TRT NOIP Waterview - Dallas GP LLC

  

Delaware Limited Liability Company

   4831669

TRT NOIP Floating Mezz Holdco LLC

  

Delaware Limited Liability Company

   4831455

TRT NOIP Floating Real Estate Holdco LLC

  

Delaware Limited Liability Company

   4831458

TRT NOIP Floating CA LP Holdco LLC

  

Delaware Limited Liability Company

   4831460

TRT NOIP Shadelands - Walnut Creek GP LLC

  

Delaware Limited Liability Company

   4831683

TRT NOIP Charleston - Mountain View GP LLC

  

Delaware Limited Liability Company

   4831687

TRT NOIP Colshire McLean LLC

  

Delaware Limited Liability Company

   4831414

TRT NOIP Colshire McLean GP LLC

  

Delaware Limited Liability Company

   4839713

 


Schedule 4.1(A)-5

The attached organizational chart correctly identifies each Person directly owning (and/or indirectly owning 5% or more of) the Harborside Property and Harborside Owner.

 


Schedule 4.11

Insurance Policies

(attached hereto)


Schedule 4.12

A “Special Purpose Bankruptcy Remote Entity” is an entity which is a limited liability company which at all times since its formation and at all times thereafter (and whose Organizational Documents require compliance with the following) :

(i) not guarantee any obligation of any Person, including any Affiliate, or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person;

(ii) not engage, directly or indirectly, in any business other than the ownership of the Pledged Interests;

(iii) not incur, create or assume any indebtedness or liabilities other than, with respect to Borrower only, the Loan and, to the extent such unsecured trade payables constitute Permitted Indebtedness, unsecured trade payables incurred in the ordinary course of its business that are related to the ownership of the Interests;

(iv) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except (1) for TRT Holdco or TRS Holdco, as applicable, and (2) that Borrower may invest in those investments permitted under the Loan Documents;

(v) not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets;

(vi) not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities);

(vii) except for TRT Holdco, TRS Holdco and the Subsidiaries (as such term is defined in the TRT Holdco LLC Agreement and TRS Holdco LLC Agreement), not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity;

(viii) own any asset or property other than the Interests and incidental personal property necessary for the ownership of the Interests; or

(ix) maintain books and records and bank accounts separate from those of any other Person;

(x) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets;

(xi) comply with all limited liability company formalities necessary to maintain its separate existence;

(xii) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;


(xiii) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that Borrower’s assets may be included in a consolidated financial statement of its Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;

(xiv) prepare and file its own tax returns separate from those of any Person to the extent required by applicable law, and pay any taxes required to be paid by applicable law;

(xv) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates;

(xvi) except as contemplated by the Loan Documents, not enter into any transaction with any Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;

(xvii) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name;

(xviii) except as contemplated by the Loan Documents, not commingle its assets or funds with those of any other Person;

(xix) except as contemplated by the Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person;

(xx) correct any known misunderstanding as to its separate identity;

(xxi) except as contemplated by the Loan Documents, not permit any Affiliate to guarantee or pay its obligations;

(xxii) not make loans or advances to any other Person;

(xxiii) pay its liabilities and expenses out of and to the extent of its own funds;

(xxiv) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;

(xxv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow from the Interests after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to Borrower;


(xxvi) cause the managers, officers, employees, agents and other representatives of Borrower to act at all times with respect to Borrower consistently and in furtherance of the foregoing and in the best interests of Borrower;

(xxvii) not take any action if, as a result of such action, it would have been or would be required to register as an investment company under the Investment Company Act of 1940, as amended; and

(xxviii) such Person’s Organizational Documents incorporate provisions that require such Person to be a Special Purpose Bankruptcy Remote Entity.

“Independent Person” shall mean a natural person that (i) is engaged by Borrower from an Approved Independent Manager Provider, (ii) who is, and continues to be during the term of engagement by Borrower, as Independent Manager employed by and in good standing with such Approved Independent Manager Provider and (iii) who is not at the time of initial appointment as Independent Manager and has not been at any time during the five (5) years preceding such initial appointment and shall not be at any time while serving as Independent Manager of Borrower: (i) a stockholder, director, manager (with the exception of serving as an Independent Manager of Borrower), officer, trustee, employee, partner, member, attorney or counsel of Borrower, or any Affiliate of either of them; (ii) a creditor, customer, supplier, or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate; (iii) a Person controlling or under common control with any Person excluded from serving as Independent Manager under (i) or (ii); or (iv) a member of the immediate family by blood or marriage of any Person excluded from serving as Independent Manager under (i) or (ii). (As used above, “Approved Independent Manager Provider” means each of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company and Lord Securities Corporation; provided, that, (a) the foregoing shall only be deemed Approved Independent Manager Providers to the extent acceptable to the rating agencies and (b) additional national providers of professional Independent Managers may be deemed added to the foregoing hereunder to the extent approved in writing by the Lender and the rating agencies.)


Schedule 11.5

Addresses for Notice

 

If to Borrower:     

TRT NOIP Floating Mezz Holdco LLC

TRS NOIP Mezz Holdco LLC

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202

Attention: Guy Arnold, President

Telephone: 303-228-2200

Facsimile: 303-577-9797

With a copy to:     

TRT NOIP Floating Mezz Holdco LLC

TRS NOIP Mezz Holdco LLC

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202

Attention: Joshua J. Widoff, Senior Vice President and General Counsel

Telephone: 303-597-0483

Facsimile: 303-869-4602

With a copy to:     

Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166

Attn: Robert Ivanhoe, Esq.

Telephone: (212) 801-9200

Facsimile: (212) 801-6400

If to Lender:     

iStar Financial Inc.

1114 Avenue of the Americas

New York, New York 10036

Attn: Chief Operating Officer

Loan No.: M00153400

Telephone: 212-930-9400

Facsimile: 212-930-9494

With a copy to:     

iStar Financial Inc.

1114 Avenue of the Americas

New York, New York 10036

Attn: Nina B. Matis, Esq./General Counsel

Loan No.: M00153400

Telephone: 212-930-9406

Facsimile: 212-930-9492


With a copy to:     

iStar Asset Services Inc.

180 Glastonbury Boulevard, Suite 201

Glastonbury, Connecticut 06033

Attn: President

Loan No.: M00153400

Telephone: 860-815-5900

Facsimile: 860-815-5901

With a copy to:     

Katten Muchin Rosenman LLP

525 West Monroe Street

Chicago, Illinois 60661-3693

Attn: Kenneth M. Jacobson, Esq.

and

George P.L. Pierce, Esq.

     Loan No.:    M00153400
     Reference:    208972-00731
     Telephone:    312-902-5445 (KMJ)
        312-902-5541 (GPLP)
     Facsimile:    312-577-8646 (KMJ)
        312-577-8893 (GPLP)

 

 

Exhibit 10.4

LOAN AGREEMENT

(FIXED RATE PORTFOLIO)

between

TRT NOIP FIXED MEZZ HOLDCO LLC,

a Delaware limited liability company

as Borrower

and

iSTAR FINANCIAL INC.,

as Lender

Dated as of June       , 2010

 

 

 


TABLE OF CONTENTS

 

     Page
SECTION 1 DEFINITIONS    1

  1.1

   General Definitions    1

  1.2

   Terms; Utilization of GAAP for Purposes of Financial Statements Under Agreement    17

  1.3

   Other Definitional Provisions    17

  1.4

   Absence of Senior Loan    18
SECTION 2 AMOUNTS AND TERMS OF THE LOAN    18

  2.1

   Loan Disbursement and Notes    18

  2.2

   Interest    19

  2.3

   Payments    20

  2.4

   Payments and Prepayments on the Loan.    20

  2.5

   Lender’s Records; Mutilated, Destroyed or Lost Notes    22

  2.6

   Taxes    22

  2.7

   Application of Payments    23

  2.8

   Right of Set-Off; Escrow Fee    24
SECTION 3 CONDITIONS TO LOAN    25

  3.1

   Conditions to Funding of the Loan on the Closing Date    25
SECTION 4 REPRESENTATIONS AND WARRANTIES    26

  4.1

   Organization, Powers, Qualification and Organization Chart    26

  4.2

   Authorization of Borrowing; No Conflicts; Governmental Consents; Binding Obligations and License and
    Security Interests of Loan Documents
   27

  4.3

   Indebtedness    28

  4.4

   Title    28

  4.5

   Litigation    29

  4.6

   Payment of Taxes    29

  4.7

   Governmental Regulation; Margin Loan    29

  4.8

   ERISA    30

  4.9

   Broker’s Fees    30

  4.10

   Solvency    30

  4.11

   Insurance    31

  4.12

   Single Purpose Bankruptcy Remote Entities    31

  4.13

   Representations Remade    31
SECTION 5 AFFIRMATIVE COVENANTS    31

  5.1

   Financial Statements and Other Reports    31

  5.2

   Existence; Qualification    34

  5.3

   Payment of Impositions    34

  5.4

   Insurance    34

  5.5

   Inspection; Lender Meeting    35

  5.6

   Compliance with Laws    36

  5.7

   Further Assurances    36

  5.8

   Property Owners and Holdco    36

  5.9

   Special Purpose Entity    36


     Page
SECTION 6 INTENTIONALLY OMITTED    37
SECTION 7 NEGATIVE COVENANTS    37

  7.1

   Indebtedness    37

  7.2

   Liens and Related Matters    37

  7.3

   Senior Loan Documents    37

  7.4

   Restriction on Fundamental Changes    38

  7.5

   Transactions with Affiliates    38

  7.6

   Use of Lender’s Name    39

  7.7

   ERISA    39

  7.8

   Due on Sale or Encumbrance    39

  7.9

   Payments; Distributions    43

  7.10

   Approval Matters    43
SECTION 8 CASUALTY AND CONDEMNATION    43
SECTION 9 DEFAULT, RIGHTS AND REMEDIES    44

  9.1

   Event of Default    44

  9.2

   Acceleration and Remedies    46

  9.3

   Remedies Cumulative; Waivers; Reasonable Charges    47

  9.4

   Put Agreements.    47
SECTION 10 SECONDARY MARKET TRANSACTION    47

  10.1

   Secondary Market Transaction    47
SECTION 11 MISCELLANEOUS    48

  11.1

   Expenses and Attorneys’ Fees    48

  11.2

   Certain Lender Matters    49

  11.3

   Indemnity    50

  11.4

   Amendments and Waivers    51

  11.5

   Notices    52

  11.6

   Survival of Warranties and Certain Agreements    52

  11.7

   Miscellaneous    53

  11.8

   APPLICABLE LAW    53

  11.9

   Successors and Assigns    53

  11.10

   CONSENT TO JURISDICTION AND SERVICE OF PROCESS    53

  11.11

   WAIVER OF JURY TRIAL    54

  11.12

   Publicity    55

  11.13

   Performance by Lender/Attorney-in-Fact    55

  11.14

   Brokerage Claims    56

  11.15

   Agreement    56


LOAN AGREEMENT

(FIXED RATE) PORTFOLIO)

THIS LOAN AGREEMENT (FIXED RATE) PORTFOLIO) (this “ Agreement ”) dated as of June       , 2010, by TRT NOIP FIXED MEZZ HOLDCO LLC , a Delaware limited liability company (“ Borrower ”), having an address at c/o Dividend Capital Total Realty Trust, 518 17 th Street, Denver, Colorado 80202 and iSTAR FINANCIAL INC. , a Maryland corporation (together with its successors and assigns, hereinafter referred to as “ Lender ”), with offices at 1114 Avenue of the Americas, New York, New York 10036.

R E C I T A L S

A. Each Person identified on Exhibit A is the fee owner of the Property identified opposite the name of such Person on Exhibit A (each such Person, together with a Substitute Owner that may own a Substitute Property, is a “ Property Owner ” and all of such Persons are the “ Property Owners ”).

B. TRT NOIP Fixed Real Estate Holdco LLC, a Delaware limited liability company (“ Holdco ”) is, indirectly, the owner of 100% of the membership interests and/or partnership interests in each Property Owner.

C. Borrower is the owner of 100% of the membership interests in Holdco.

D. Borrower desires to borrow from Lender, and Lender desires to lend to Borrower, a loan in the maximum amount of up to $57,870,000.

NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions and agreements contained herein, Borrower and Lender agree as follows:

SECTION 1

DEFINITIONS

1.1 General Definitions .

In addition to any other terms defined in this Agreement, the following terms shall have the following meanings:

“Administrative Agent” is defined in Section 12.3.

Affiliate ” means any Person: (A) directly or indirectly controlling, controlled by, or under common control with, another Person; (B) directly or indirectly owning or holding forty-nine percent (49%) or more of any equity interest in another Person; or (C) forty-nine percent (49%) or more of whose voting stock or other equity interest is directly or indirectly owned or held by such other Person.

Agreement ” means this Loan Agreement (Fixed Rate Portfolio) (including all schedules, exhibits, annexes and appendices hereto), as amended, modified or supplemented from time to time.

 

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Applicable Minimum Senior Release Price ” means, for each Property, the minimum payment required to be paid to the Senior Lender pursuant to the Senior Loan Documents to effect a Sale of such Property (or, in connection with a defeasance of the Lien of the Senior Mortgage encumbering the applicable Property) without the occurrence of a Senior Loan Default or Senior Loan Event of Default.

Approval Matters ” means any one or more of the following: (a) the execution and delivery of Leases (and related guarantees) and modifications, supplements, amendments and restatements of Leases (and related guarantees), (b) enforcement of Leases (and related guarantees) against a defaulting tenant (and, if applicable, guarantor); (c) consents to assignments and subleases by a tenant under a Lease; (d) the execution and delivery of Material Contracts and amendments, modifications, replacements, restatements or terminations of Material Contracts, the giving or withholding of material waivers, consents and approvals under, the request for material waivers, consents and approvals under, and enforcement of, such Material Contracts against a defaulting Person; (e) operating and capital budgets in respect of any Property Owner or any Property, any material changes to any such budgets, the incurring of material liability not set forth in any such budgets and any material expenditures not set forth in any such budgets; (f) material capital improvements whether or not set forth in a budget approved by Lender; (g) except as required under the Senior Loan Documents, the institution, termination or modification of any lockbox or other cash management arrangements and documents establishing, maintaining or requiring any such arrangements pertaining to any Property, any Property Owner, Holdco or Borrower; provided, however, during the continuance of an Event of Default, “Approval Matters” described in part (d) of this definition shall include all contracts and agreements, including management agreements, brokerage agreements, service contracts and construction contracts between a Property Owner and another Person, whether or not the same are Material Contracts.

“Authorized Officer” means the chief executive officer, chief financial officer or other executive officer of Borrower.

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as amended from time to time and all rules and regulations promulgated thereunder.

Base Rate ” means, as applicable: (A) with respect to Tranche A, (i) a fixed rate per annum equal to five and four hundred forty-five thousandths percent (5.445%), or (ii) if the applicable Resolution Conditions are satisfied prior to the expiration of the Resolution Expiration Period, a fixed rate per annum equal to (a) ten percent (10%) during the period commencing on the date when the last of the applicable Resolution Conditions are first satisfied and ending on the third anniversary of the Closing Date, (b) twelve percent (12%) during the period commencing on the day after the third anniversary of the Closing Date and ending on the seventh anniversary of the Closing Date, and (c) thirteen percent (13%) during the period commencing on the day following the seventh anniversary of the Closing Date and continuing thereafter, and (B) with respect to Tranche B, a fixed rate per annum equal to (a) ten percent (10%) during the period commencing on the Closing Date and ending on the third anniversary of the Closing Date, (b) twelve percent (12%) during the period commencing on the day after the third anniversary of the Closing Date and ending on the seventh anniversary of the Closing Date, and (c) thirteen percent (13%) during the period commencing on the day following the seventh anniversary of the Closing Date and continuing thereafter.

 

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“Borrower’s Advisor” is defined in Section 4.9.

Business Day ” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are required by law to be closed.

Carveout Guarantor ” means Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership.

Carveout Guaranty ” means that certain guaranty of Carveout Guarantor in favor of Lender of even date herewith.

Change of Control ” means the occurrence of any one or more of the following: (i) a Person (together with any one or more of its Affiliates) shall have acquired, in one or more transactions, ownership or control of a majority of the voting Securities of DCTRT or (ii) DCTRT shall cease to Control Borrower.

Closing ” means that the disbursement of the proceeds of the Loan shall have been made to, or upon the order of, Borrower.

Closing Checklist ” means the closing checklist attached hereto as Exhibit E .

Closing Date ” means the date hereof.

Code ” means the United States Internal Revenue Code of 1986, and any rule or regulation promulgated thereunder from time to time.

Collateral ” means the Pledged Interests and all other personal property of Borrower pledged or mortgaged to Lender as collateral security for repayment of the Loan and all “proceeds” (as defined in the UCC) of any of the foregoing Pledged Interests or other property.

Companion Borrowers ” means the “Borrowers” as defined in the Companion Loan Agreement.

Companion Loan ” means the “Loan” as defined in the Companion Loan Agreement.

Companion Loan Agreement ” means the Loan Agreement (Floating Rate Portfolio) of even date herewith among Companion Borrowers and Lender.

Companion Loan Documents ” means the “Loan Documents” as defined in the Companion Loan Agreement.

Companion Proceeds ” means “Net Sales Proceeds” and “Net Refinancing Proceeds” each as defined in the Companion Loan Documents.

 

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“Companion Sale of a Property” means a “Sale of a Property” as defined in the Companion Loan Documents”.

Confidential Information ” is defined in Section 11.12.

Contingent Obligation ,” as applied to any Person, means any direct or indirect liability, contingent or otherwise, of that Person: (a) with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (c) under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect the applicable Person against fluctuations in interest rates; or (d) under any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect that Person against fluctuations in currency values. Contingent Obligations shall include (1) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (2) the obligation to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement, and (3) any liability of such Person for the obligations of another through any agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the amount determined in accordance with GAAP.

Control ” (including with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

DCTRT ” means Dividend Capital Total Realty Trust Inc., a Maryland corporation, and its successors.

DCTRT Group ” means the Related Parties and DCTRT.

“Debt Service Coverage Calculation Date” is the date of the closing of the applicable Modification or Refinancing.

“Debt Service Coverage Period” is defined in the definition of Debt Service Coverage Ratio.

Debt Service Coverage Ratio ” means the ratio of (a) Net Adjusted Operating Income during the period commencing on the date that is one year prior to the final day of the Loan Month in which the Debt Service Coverage Calculation Date occurs and ending on the final day

 

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of the Loan Month in which the Debt Service Coverage Calculation Date occurs; provided, however, if the Debt Service Coverage Calculation Date occurs prior to the first anniversary of the Closing Date, Lender shall reasonably adjust such calculation to annualize Net Adjusted Operating Income, (b) the aggregate amount of the payments of scheduled interest and principal to be paid on the Loan and the Senior Loan during the period “ Debt Service Coverage Period ”) commencing on the day immediately following the final day of the Loan Month in which the Debt Service Coverage Calculation Date occurs and ending on the anniversary of such day (assuming for such purposes that interest (i) on the Loan is calculated at an interest rate equal to the Base Rate scheduled to be in effect from time to time during the Debt Service Coverage Period and (ii) on the Senior Loan is calculated at an interest rate equal to the interest rate scheduled to in effect for the Senior Loan during the Debt Service Coverage Period and that the principal amount of each the Loan and the Senior Loan during such period will be the principal amount of the Loan and Senior Loan, as applicable, as of the Calculation Date in question less scheduled amortization, but computed after giving effect to principal reduction and other changes in economic terms in connection with the related Refinancing, Sale of a Property or Modification).

Debt Service Coverage Target Ratio ” means 1.75 to 1 (1.75:1).

Default ” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period.

Default Rate ” means a rate per annum equal to the Base Rate plus five percent (5%).

Default Interest ” is defined in Section 2.2(A).

Distribution ” is defined in Section 7.9.

Dollars ” and the sign “ $” mean the lawful money of the United States of America.

“Earn-Out Amendment” means an amendment to the Senior Loan and the Senior Loan Documents pursuant to which, inter alia , the Northrop Property is added as collateral for the Senior Loan and the portion of the Senior Loan allocable to the Northrop Property is funded by the Senior Lender, all upon the terms and conditions provided for in the Senior Loan Documents as in effect on the date hereof.

“Embargoed Person” is defined in Section 4.7.

Environmental Laws ” means all present and future federal, state and/or local laws, statutes, ordinances, codes, rules, regulations, orders, decrees, licenses, decisions, orders, injunctions, requirements and/or directives of Governmental Authorities, as well as common law, imposing liability, standards of conduct or otherwise pertains or relates to, or for, for the environment, industrial hygiene, the regulation of Hazardous Substances, natural resources, pollution or waste management that are applicable to the Property.

ERISA ” means the Employee Retirement Income Security Act of 1974, and all rules and regulations promulgated thereunder.

 

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Event of Default ” is defined in Section 9.1.

Excess Interest ” is defined in Section 2.2(C).

“Excluded Lease” means a Lease (a) that has expired by its terms or that is scheduled to expire by its terms during the applicable Debt Service Coverage Period unless the tenant under such Lease has timely and properly notified Property Owner that it will renew or extend the term of such Lease, (b) that has a tenant or Lease guarantor that has filed a voluntary proceeding under the Bankruptcy Code, has consented to an involuntary proceeding under the Bankruptcy Code, is a debtor in an involuntary proceeding under the Bankruptcy Code that has not been dismissed within one hundred twenty (120) days of the filing of such involuntary proceeding, has made an assignment for the benefit of creditors or is the subject of a reorganization, receivership, composition or analogous proceeding that has not been dismissed within one hundred twenty (120) days after the initiation thereof (unless, in any such instance, in the case of a proceeding where the tenant is the debtor, the tenant has assumed the Lease and such assumption has been approved by order of the court in the proceeding that has become final by appeal or lapse of time for appeal and, if such tenant’s obligations under such Lease have been guaranteed, such guarantor has ratified and confirmed its guaranty), (c) that has a tenant that has vacated the applicable premises and such tenant does not maintain a credit rating for its long-term unsecured debt as established by Standard & Poors, a division of The McGraw-Hill Companies, Inc. of BBB- or better or (d) that has a tenant that is in monetary default or material non-monetary default beyond the expiration of any applicable curative period.

Financing Statements ” means the UCC-1 Financing Statements naming Borrower, as debtor, and Lender, as secured party, and filed with such filing offices as Lender may require.

Foreclosure Event ” means the occurrence of an Event of Default specified in Sections 9.1(A), 9.1(B), 9.1(D), 9.1(E), 9.1(F), (9.1)(M), 9.1(N), or 9.1(O). For the avoidance of doubt, a default under either Put Agreement by DCTRT shall not be a Foreclosure Event.

GAAP ” means generally accepted accounting principles in the United States of America, consistently applied, as of the date in question.

Governmental Authority ” means the United States of America, any state, any foreign governments and any political subdivision or regional division of the foregoing, and any agency, department, court, regulatory body, commission, board, bureau or instrumentality of any of them.

Harborside Interests” means membership, partnership or other ownership interests in any Harborside Owner.

Harborside Owner ” means Plaza X Leasing Associates L.L.C., Plaza X Realty L.L.C., Plaza X Urban Renewal Associates L.L.C., American Financial Exchange L.LC., and TRT Harborside LLC.

Harborside Proceeds ” means without duplication, (a) any and all monetary consideration or other economic compensation, whether direct or indirect, that is received by a Harborside Owner (or any other Person that is an Affiliate of a Harborside Owner) for, or in connection with, a sale or other disposition of all or any part of the Harborside Property or

 

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Harborside Interests, including the stated purchase price, cash, prepaid expenses and contracts for the seller’s service and the service of an Affiliate of a Harborside Owner, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with such sale or disposition not paid to an Affiliate of a Harborside Owner (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with such sale or disposition, (ii) amounts necessary to fully repay, satisfy or defease any loan (x) held by a Person that is not a member of the DCTRT Group, a Harborside Owner or Person that is an Affiliate of a Harborside Owner or member of the DCTRT Group and (y) secured by the Harborside Property and/or Harborside Interests; and (iii) any escrows or holdbacks under the until released to, or upon the order of, a Harborside Owner and (b) the proceeds of any financing or refinancing (excluding financing closing on the date hereof) in which any part of the Harborside Property or Harborside Interests serves as collateral adjusted by deducting proceeds applied to satisfy then existing mortgage loans not held by a Harborside Owner or their respective Affiliates and the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a financing or refinancing to the extent not paid to any Harborside Owner or any of their respective Affiliates, including, independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, attorneys’ fees, professional and consultant costs, environmental and engineering report costs, and application and commitment fees, if any, incurred in connection with the applicable financing or refinancing.

“Harborside Property” means the real estate described on Exhibit C attached hereto and related property and leases among or between any Harborside Owner.

Hazardous Materials ” means (a) any pollutants, toxic pollutants, oil, gasoline, petroleum products, asbestos, materials or substances containing asbestos, explosives, chemical liquids or solids, radioactive materials, polychlorinated biphenyls or related or similar materials, or any other solid, liquid or other emission, substance, material, product or by-product defined, listed or regulated as a hazardous, noxious, toxic or solid substance, material or waste or defined, listed or regulated as causing cancer or reproductive toxicity, or otherwise defined, listed or regulated as hazardous or toxic in, pursuant to, or by any federal, state or local law, ordinance, rule, or regulation, now or hereafter enacted, amended or modified, in each case to the extent applicable to the Properties including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et seq. ); the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq. ); the Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq. ); Sections 25117, 25281, 25316 or 25501 of the California Health & Safety Code; any so-called “Superfund” or “Superlien” law; the Toxic Substance Control Act of 1976 (15 U.S.C. Section 2601 et seq. ); the Clean Water Act (33 U.S.C. Section 1251 et seq. ); and the Clean Air Act (42 U.S.C. Section 7901 et seq. ); (b) any substance which is or contains asbestos, radon, polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, lead paint, motor fuel or other petroleum hydrocarbons; (c) fungus, mold, mildew, or other biological agents the presence of which may adversely affect the health of individuals or other animals or materially adversely affect the value or utility of the Properties, and/or (d) any other substance which causes or poses a threat to cause a contamination or nuisance with respect to all or any portion of the Properties or any adjacent property or a hazard to the environment or to the health or safety of Persons.

 

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Improvements ” means all buildings, improvements, alterations or appurtenances now, or at any time hereafter, located upon, in, under or above the Land or any part thereof and comprise part of the Property.

Indebtedness ”: With respect to any Person means, without duplication, (a) any indebtedness of such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of any property or asset of such Person to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) any obligations of such Person for the deferred purchase price of property or services; (c) any obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; (d) any obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (e) any obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases; (f) any obligations of such Person as a result of any final judgment rendered against such Person or any settlement agreement entered into by such Person with respect to any litigation unless such obligations are stayed upon appeal (for so long as such appeal shall be maintained) or are fully discharged or bonded within one hundred and twenty (120) days after the entry of such judgment or execution of such settlement agreement; (g) any obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit; (h) any Contingent Obligations; (i) any Indebtedness of others referred to in clauses (a) through (h) above or clause (j) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss; and (j) any Indebtedness referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

Indemnified Liabilities ” is defined in Section 11.3.

Indemnitees ” is defined in Section 11.3.

Independent Person ” is defined in Schedule 4.12 .

Intercreditor Agreement ” means the Intercreditor Agreement between Lender and Senior Lender of even date herewith and, from and after mutual execution and delivery thereof, any analogous document executed and delivered in connection with a Permitted Refinancing.

 

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Interest Period ” means the period of time beginning on the first (1st) day of a Loan Month and ending on the last day of such Loan Month; provided , however , the first Interest Period shall commence on the Closing Date and continues to and includes June 30, 2010.

Interest Rate ” means the applicable of the Base Rate or the Default Rate.

Intervening Entity ” means any Persons (other than the Property Owners) in which Borrower or Holdco owns a direct or indirect ownership interest.

Land ” means the real estate legally described on Exhibit B .

Late Charge ” is defined in Section 2.2(D).

Leases ” means any and all leases, subleases, occupancy agreements or grants of other possessory interests, whereby a Property Owner acts as the lessor, sublessor, licensor, grantor or in another similar capacity, now or hereafter in force, oral or written, covering or affecting the Land or Improvements, or any part thereof, together with all rights, powers, privileges, options and other benefits of any such Property Owner thereunder and any and all guaranties of the obligations of the lessees, sublessees, occupants, and grantees thereunder, as such leases, subleases, occupancy agreements or grants may be extended, renewed, modified or replaced from time to time (exclusive of any ground lease having any such Property Owner as ground lessee).

Legal Requirements ” means all applicable laws, statutes, ordinances, rulings, regulations, codes, decrees, orders, policies, guidelines, judgments, covenants, conditions, restrictions, approvals, permits and requirements or of, from or by any Governmental Authority, including zoning, subdivision, land use, environmental, building, safety, health, wetlands and landmark preservation, housing and fire laws and the Americans with Disabilities Act.

“Lender’s Advisor” is defined in Section 4.9.

Lien ” means any lien, mortgage, pledge, security interest, charge or monetary encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and (b) any negative pledge or analogous agreement including any agreement not to directly or indirectly convey, assign, sell, mortgage, pledge, hypothecate, grant a security interest in, grant options with respect to, transfer or otherwise dispose of, voluntarily or involuntarily, by operation of law or otherwise, any direct or indirect interest in an asset or direct or indirect interest in the ownership of an asset.

Loan ” means the loan in the aggregate stated principal amount of $57,870,000 from Lender to Borrower as evidenced by the Notes. The Loan consists of two tranches, the first tranche shall be in the maximum principal amount of $27,000,000 (“ Tranche A ”) and the second tranche shall be in the maximum principal amount of $30,870,000 (“ Tranche B ”). Unless otherwise provided herein, the term “Loan” shall mean and include both Tranche A and Tranche B.

 

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Loan Documents ” means this Agreement, the Notes, the Carveout Guaranty, the Financing Statements, the Pledge Agreement and all other documents, instruments, certificates and other deliveries made by Borrower to Lender which otherwise evidence, secure and/or govern the Loan. Borrower and Lender agree that neither Put Agreement is a “Loan Document”, and that a default under either Put Agreement shall not be a Default or an Event of Default hereunder.

Loan Month ” means a calendar month.

“Loan Party” means any of Borrower, Carveout Guarantor and DCTRT.

Material Adverse Effect ” means (A) a material adverse effect upon the business, operations, properties, assets or financial condition of DCTRT, the Related Parties or the Properties, taken as a whole, or (B) the impairment, in any material respect, of the ability of any of any member of the DCTRT Group to perform its respective material obligations under any of the Loan Documents or the Put Agreements or of Lender to enforce or collect any of the Obligations. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then existing events would result in a Material Averse Effect.

“Material Contract” means (i) any management agreement for a Property or (ii) any contract or other agreement relating to the operation, maintenance or construction of any Property which is in excess of $1,000,000.00 per annum.

Maturity Date ” is defined in Section 2.4(B).

Maximum Rate ” is defined in Section 2.2(C).

“Mezzanine Minimum Release Amount” means an amount of money for each Property equal to the sum of the applicable Mezzanine Tranche A Minimum Release Amount and the applicable Mezzanine Tranche B Minimum Release Amount.

“Mezzanine Release Payment Amount” means, with respect to a Sale of a Property an amount equal to the lesser of (A) the outstanding balance of the Loan; and (B) the greater of (i) Net Sale Proceeds with regard to such Sale of a Property or (ii) the applicable Mezzanine Minimum Release Amount.

“Mezzanine Tranche A Minimum Release Amount” means the applicable amount of money specified on Exhibit D for the applicable Property in the column labeled “Mezz A iStar Release Price”.

“Mezzanine Tranche B Minimum Release Amount” means the applicable amount of money specified on Exhibit D for the applicable Property in the column labeled “Mezz B iStar Release Price”.

Modification ” is defined in Section 7.3(A).

 

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“Monthly P&I Mezz A Installment Amount” means One Hundred Fifty-Two Thousand Three Hundred Seventy-Two and 62/00 Dollars ($152,372.62); provided, however, upon any prepayment pursuant to Section 2.4(C) (exclusive of amortization by virtue of payment of the Monthly P&I Mezz A Installment Amount) of Tranche A, the Monthly P&I Mezz A Installment Amount shall be recalculated by Lender based upon the then outstanding balance of Tranche A at the applicable Base Rate and a 30 year amortization period.

“Net Adjusted Operating Income” means, without duplication of any item, Net Operating Income as such amount may be adjusted by Lender in its good faith discretion (a) to eliminate Operating Income and Operating Expenses to the extent attributable to a Property that is sold in connection with a Sale of a Property, (b) to eliminate Operating Income derived from Leases that are Excluded Leases, (c) to reduce Operating Income by rent reductions expressly provided for under the Leases to occur during the applicable Debt Service Coverage Period, and (d) to eliminate lease termination payments, insurance collections (other than business interruption or rent loss insurance), condemnation awards, judgment collections, settlement payments, forfeited security deposits and other non-recurring or extraordinary income and expenses.

Net Operating Income ” shall mean, with respect to any period of time, the amount obtained by subtracting Operating Expenses from Operating Income.

Net Refinancing Proceeds ” means the Refinancing Proceeds remaining after application of Refinancing Proceeds to satisfaction (or full defeasance of Liens securing) the Senior Loan as required pursuant to the Senior Loan Documents. If a Property is sold to an Affiliate through a Permitted Affiliate Sale of a Property, Net Refinancing Proceeds, shall mean, following such Permitted Affiliate Sale of a Property, as to such Property, Net Refinancing Proceeds in respect of such Property (with references to “Senior Loan” referring to loans held by Persons that are not members of the DCTRT Group or any Affiliate of any member of the DCTRT Group).

Net Sales Proceeds ” means, without duplication, any and all monetary consideration or other economic compensation, whether direct or indirect, that is received by a Property Owner (or any other Person that is an Affiliate of a member of the DCTRT Group) for, or in connection with, a Sale of a Property, including the stated purchase price, cash and prepaid expenses, contracts for the seller’s service and the service of an Affiliate of Borrower, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Sale of a Property not paid to an Affiliate of Borrower (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) or other member of the DCTRT Group, including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with a Sale of a Property and (ii) any escrows or holdbacks under the applicable Sale Agreement unless and until released to Borrower, and (iii) to the extent paid to the Senior Lender or utilized to effect a partial defeasance of the Senior Mortgage securing the Senior Loan encumbering the applicable Property, the Applicable Minimum Senior Release Price. If a Property is sold to an Affiliate through a Permitted Affiliate Sale of a Property, Net Sales Proceeds shall, following such Permitted Affiliate Sale mean, as to such Property, without duplication, any and all monetary consideration or other economic compensation, whether direct

 

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or indirect, that is received by the applicable seller of the Property that is an Affiliate of a member of the DCTRT Group (or any other Person that is an Affiliate of a Property Owner, Holdco, Borrower or DCTRT) for, or in connection with, a Sale of a Property, including the stated purchase price, cash and prepaid expenses, contracts for the seller’s service and the service of an Affiliate of Borrower, but deducting (i) the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Sale of a Property not paid to an Affiliate of Borrower (other than a disposition fee of up to 1% of the stated purchase price that may be paid to an Affiliate of DCTRT) or other member of the DCTRT Group, including independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, and net prorations in favor of purchaser incurred in connection with a Sale of a Property and (ii) any escrows or holdbacks under the applicable Sale Agreement unless and until released to Borrower, and (iii) to the extent paid to the holder of the loan encumbering the applicable property (held by a Person that is not a member of the DCTRT Group or Affiliate of a member of the DCTRT Group) or utilized to effect a partial defeasance of the liens securing such loan encumbering the applicable Property, the applicable payment to pay such loan or to defease such loan.

“Northrop Indemnity” means that certain Indemnity and Direction Agreement, dated as of the date hereof, between iStar Financial Inc., DCTRT, Dividend Capital Total Realty Trust Inc., a Delaware corporation, Carveout Guarantor, TRT Acquisitions LLC, a Delaware limited liability company, and iStar NG LP, a Delaware limited partnership.

“Northrop VA Property” means the real estate described on Exhibit F attached hereto and leased to Northrop Grumman Systems Corporation.

“Northrop Transfer” is defined in Section 7.8(E).

“Note” or “Notes” means the Tranche A Promissory Note and the Tranche B Promissory Note, together with the Substitute Notes and all future advances, extensions, renewals, substitutions, modifications and amendments of the Tranche A Promissory Note, the Tranche B Promissory Note and Substitute Notes.

Obligations ” means, in the aggregate, all obligations, liabilities and indebtedness of every nature of Borrower from time to time owed to Lender under the Loan Documents, including the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable to Lender under the Loan Documents whether before or after the filing of a proceeding under the Bankruptcy Code by or against Borrower. The term “Obligations” shall also include any judgment against Borrower or the Collateral with respect to such obligations, liabilities and indebtedness of Borrower.

OFAC ” is defined in Section 4.7.

Officer’s Certificate ” means the certificate of an executive officer, chief financial officer or other officer or representative with knowledge of the matters addressed in such certificate.

 

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“Operating Expenses” means “Operating Expenses” as defined in the Senior Loan Agreement as in effect as of the date hereof.

“Operating Income” means “Operating Income” as defined in the Senior Loan Agreement as in effect as of the date hereof.

Organizational Documents ” means, as applicable, for any Person, such Person’s articles or certificate of incorporation, by-laws, partnership agreement, trust agreement, certificate of limited partnership, articles of organization, certificate of formation, shareholder agreement, voting trust agreement, operating agreement, limited liability company agreement and/or analogous documents, as amended, modified or supplemented from time to time.

Payment Date ” means the 1 st day of each Loan Month commencing on July 1, 2010.

Permitted Indebtedness ” means (i) ordinary and customary trade payables incurred in the ordinary course of business of ownership of the Collateral which are payable not later than thirty (30) days after receipt of the original invoice which are in fact not more than sixty (60) days overdue, and do not at any one time exceed $100,000 in the aggregate and (ii) the Loan.

Permitted Modification ” is defined in Section 7.3(A).

Permitted Organizational Modification ” means any amendment of Organizational Documents that (a) does not admit any Person as a member or partner in a Property Owner or an Intervening Entity, or (b) does not result in a Change of Control of Borrower and (c) no new equity that is invested in Borrower in connection with the admission of a new member thereof is paid to the initial owner(s) of the membership interest in Borrower, (d) does not materially change, modify, amend or waive, the SPE Provisions of any such Person’s Organizational Documents and (e) does not cause Borrower to cease to be a Special Purpose Bankruptcy Remote Entity.

“Permitted Affiliate Sale of a Property” is defined in Section 7.8(B).

Permitted Sale of a Property ” means a Sale of a Property that complies with Section 7.8(B).

Permitted Refinancing ” means a Refinancing that complies with Section 7.8(C).

Person ” means and includes natural persons, corporations, limited liability companies, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof and their respective permitted successors and assigns (or in the case of a governmental person, the successor functional equivalent of such Person).

Pledge Agreement ” means that certain Pledge Agreement of even date herewith between Borrower and Lender.

 

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Pledged Interests ” means 100% of the membership interests in Holdco including all rights as a member in Holdco, all rights to profits and losses pertaining to such membership interests, all distributions, from time to time, pertaining to such membership interests upon full or partial liquidation or otherwise, all right, title and interest to participate in the management and voting of Holdco, all options and other agreements for the purchase of any interests in Holdco and all documents or certificates representing rights and interests in Holdco.

Property ” means the Land, the Improvements and all other collateral mortgaged or pledged by the Senior Loan Documents and are identified on Exhibit A or any individual Property identified on Exhibit A as the context requires. The Property will also include any Substitute Property in accordance with Section 7.8. In the event the Northrop Transfer occurs, the Property will also include the Northrop VA Property.

“Property Owner” is defined in the Recitals.

Purchase Agreement ” means that certain Purchase and Sale Agreement dated as of May 3, 2010 among TRT Acquisitions LLC, the sellers identified therein and joined in by iStar Financial Inc. and DCTRT for the purposes specified therein, as amended from time to time.

“Put Acquisition” is defined in Section 12.1.

“Put Agreement” or “ Put Agreements ” means the Tranche A Put Agreement and the Tranche B Put Agreement.

Refinancing ” means a refinancing of the Senior Loan.

Refinancing Expenses ” means the reasonable, verifiable, customary, actual and bona fide closing costs incurred in connection with a Permitted Refinancing to the extent not paid to any member of the DCTRT Group or any of their respective Affiliates, including, independent third party brokers’ commissions, title charges, survey costs, escrow charges, transfer taxes, attorneys’ fees, professional and consultant costs, environmental and engineering report costs, and application and commitment fees, if any, incurred in connection with a Refinancing.

Refinancing Proceeds ” means the proceeds of any Permitted Refinancing deducting only the Refinancing Expenses for the Refinancing.

Related Party ” means any of Borrower, Holdco, Intervening Entities, Carveout Guarantor and Property Owners.

“Resolution” is defined in Section 13.4 of the Purchase Agreement.

“Resolution Conditions” means (a) prior to the fiftieth (50 th ) day following the Closing Date, the occurrence of Resolution, and (b) after the fiftieth (50 th ) day following the Closing Date, the occurrence of each of (i) Resolution, (ii) the Northrop Transfer and (iii) the earlier of the consummation of the Earn-Out Amendment or the funding of the Earn-Out Advance (as defined in the Senior Loan Agreement as in effect on the date hereof).

 

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“Resolution Expiration Period” means the period commencing on the Closing Date and ending on the fiftieth (50 th ) day following the Closing Date; provided, however, if both (a) Resolution and (b) the Northrop Transfer occur after the fiftieth (50 th ) day following the Closing Date, but on or before the ninetieth (90 th ) day following the Closing Date, the Resolution Expiration Period will end of the ninetieth (90 th ) day following the Closing Date.

“Sale Agreement” is defined in Section 7.8(B).

Sale of a Property ” means (a) any, direct sale or conveyance, assignment, transfer, exchange or other disposition of all or any part of a Property; or (b) any assignment, sale, conveyance, assignment, transfer, exchange, or other disposition of 100% of the ownership interests, direct or indirect, of a Property Owner, in each case under (a) or (b) to a Person that is not a member of the DCTRT Group or any of such Person’s respective Affiliates unless the same is a Permitted Affiliate Sale of a Property.

Securities ” means any stock, shares, voting trust certificates, bonds, debentures, options, warrants, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities’ or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

Securitization ” is defined in Section 10.1.

Senior Lender ” means the holder(s), from time to time, of the Senior Loan Documents.

Senior Loan ” means that certain $292,000,000.00 loan made by Senior Lender to Property Owners and, from and after a Permitted Refinancing, includes a Permitted Refinancing of a Senior Loan.

Senior Loan Agreement ” means (a) that certain Loan Agreement dated as of the date hereof, between Senior Lender and Property Owners governing the Senior Loan and (b) from and after a Permitted Refinancing, the loan agreement or analogous documents pertaining to any Permitted Refinancing Loan.

Senior Loan Default ” means any default by any Person (other than the Senior Lender) under the Senior Loan Documents.

Senior Loan Documents ” means the Senior Loan Agreement, the Senior Mortgage, the Senior Note and all other agreements, instruments and documents evidencing, securing, guarantying, perfecting, and/or governing the Senior Loan.

Senior Loan Event of Default ” means the occurrence of a default or other event under the Senior Loan Documents that, continues following such notice, curative or grace periods in the Senior Loan Documents, that results or, at the election of the Senior Lender or any other Person may result in, acceleration of the Senior Loan, foreclosure in respect of any collateral for the Senior Loan, the exercise of any remedies under the Senior Loan Documents including trustee’s sale, foreclosure, Uniform Commercial Code sale, the appointment of a receiver, or other remedies.

 

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Senior Mortgage ” means the “Mortgage” as defined in the Senior Loan Agreement.

Servicer ” is defined in Section 10.1.

Senior Note ” means the promissory note(s) evidencing the Senior Loan.

SPE Provisions ” means provisions of a Person’s Organizational Documents that are substantially similar to the provisions required to be included in the Organizational Documents of the Borrower pursuant to Section 5.9 (except references in the Organizational Documents of the Property Owners will refer to the Senior Loan and not the Loan and an Independent Person will be required only for Holdco (for Holdco and actions by the Intervening Entities and Property Owners) and Borrower, and except as otherwise modified as reflected in the Organizational Documents for each Property Owner and Intervening Entity delivered to Lender and in effect as of the date hereof).

Special Purpose Bankruptcy Remote Entity ” is defined in Schedule 4.12 .

“Special Purpose Entity” means a Person which is a limited liability company or limited partnership whose Organizational Documents include the SPE Provisions and which Person has at all time complied with such SPE Provisions.

Substitute Note ” means all notes given in substitution or exchange for the Tranche A Promissory Note, the Tranche B Promissory Note or another Substitute Note.

Substitute Owner” means the owner of a Substitute Property.

“Substitute Property” means real estate and related property that, pursuant to the Senior Loan Documents, is substituted for one of the other Properties in accordance with the Senior Loan Documents and Section 7.8.

Tax Liabilities ” is defined in Section 2.6.

Title Company ” means First American Title Insurance Company.

Title Insurance Policy ” shall mean an owner’s policy(ies) of title insurance issued by the Title Company (or the closest equivalent available in any given jurisdiction), in the amount of not less than the allocable purchase price for the Properties as set forth in the Purchase Agreement, insuring that the Property Owners own fee simple title to the Property (including any easements appurtenant thereto) subject only to such defects as the purchaser under the Purchase Agreement is obligated or has agreed to accept. At Lender’s option and expense, the Title Policy shall contain a mezzanine loan endorsement.

“Tranche A” is defined in the definition of “Loan”.

“Tranche A Promissory Note” means that certain Promissory Note (Tranche A) dated of even date herewith made by Borrower to the order of Lender in the maximum principal amount of $27,000,000.

 

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“Tranche A Put Agreement” means that certain Put Agreement (Tranche A) by DCTRT in favor of Lender of even date herewith.

“Tranche B” is defined in the definition of “Loan”.

“Tranche B Promissory Note” means that certain Promissory Note (Tranche B) dated of even date herewith made by Borrower to the order of Lender in the maximum principal amount of $30,870,000.

“Tranche B Put Agreement” means that certain Put Agreement (Tranche B) by DCTRT in favor of Lender of even date herewith.

Transfer ” means, (a) when used as a verb, to, directly or indirectly, lease, sell, assign, convey, give, exchange, devise, mortgage, encumber, pledge, hypothecate, alienate, grant a security interest, or otherwise create or suffer to exist any Lien, transfer or otherwise dispose, or to contract or agreement to do any of the foregoing, whether by operation of law, voluntarily, involuntarily or otherwise as well as any other action or omission which has the practical effect of initiating or completing the foregoing and (b) when used as a noun, a direct or indirect, lease, sale, assignment, conveyance, gift, exchange, devise, mortgage, encumbrance, pledge, hypothecation, alienation, grant of a security interest or other creation or sufferance of a Lien, transfer of other disposition, or contract or agreement by which any of the foregoing may be effected, whether by operation of law, voluntary or involuntary and any other action or omission which has the practical effect of initiating or completing the foregoing.

UCC ” means the Uniform Commercial Code as in effect in the State of New York.

UCC Policy ” means a so-called “ Eagle 9 UCC Insurance Policy ” (or equivalent satisfactory to Lender such as a “ UCC-Plus Policy ”) issued by an insurer reasonably approved by Lender insuring Lender’s first priority perfected security interest in the Collateral in the amount of the Loan with a mezzanine/pledged equity endorsement.

1.2 Terms; Utilization of GAAP for Purposes of Financial Statements Under Agreement . For purposes of this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to such terms in conformity with GAAP. Financial statements and other information furnished to Lender pursuant to subsection 5.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation unless otherwise required pursuant to the Senior Loan.

1.3 Other Definitional Provisions . References to “Sections,” “Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined in Section 1.1 may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. In this Agreement, “hereof,” “herein,” “hereto,” “hereunder” and the like mean and refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which the respective word appears; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; the phrase “and/or” shall mean that either “and” or “or” may apply; the

 

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phrases “attorneys’ fees,” “legal fees” and “counsel fees” shall include any and all attorneys’, paralegal and law clerk fees and disbursements, including court costs, fees and disbursements at the pre-trial, trial and appellate levels incurred or paid by Lender in protecting its interest in the Properties and the Collateral and enforcing its rights hereunder and/or the other Loan Documents; references to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement or any other Loan Document; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; references to a Person’s “knowledge” in this Agreement or the other Loan Documents refers to the actual knowledge of the Person in question; and all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations.

1.4 Absence of Senior Loan . For purposes of Sections 5 and 7, in the event no Senior Loan exists, references to “Senior Loan Documents” shall refer to the Senior Loan Documents pertaining to the then most recently existing Senior Loan and references to “Senior Lender” shall refer to “Lender” for purposes of all approvals, consents, acknowledgements and deliveries (other than payment of monies) provided, that Lender need not be named as “mortgagee” on any casualty insurance policy.

SECTION 2

AMOUNTS AND TERMS OF THE LOAN

2.1 Loan Disbursement and Notes . Subject to the terms and conditions of this Agreement, Lender shall lend Thirty-Nine Million Four Hundred Thirty-Eight Thousand Two Hundred Five Dollars ($39,438,205) of the principal amount of the Loan to Borrower on the Closing Date of which (a) Twenty-Seven Million Dollars ($27,000,000) shall consist of Tranche A and (b) Twelve Million Four Hundred Thirty-Eight Thousand Two Hundred Five Dollars ($12,438,205) shall consist of Tranche B. The proceeds of the Loan shall be used to pay a portion of the purchase price of the Properties. The initial disbursement of the Loan in accordance with the foregoing shall be made on the Closing Date. If the Northrop Transfer occurs, an additional Eighteen Million Four Hundred Thirty-One Thousand Seven Hundred Ninety-Five Dollars ($18,431,795) shall be deemed advanced (as part of Tranche B of the Loan) if the principal balance of the Companion Loan immediately prior to such Northrop Transfer equals or exceeds Eighteen Million Four Hundred Thousand Seven Hundred Ninety-Five Dollars ($18,431,795) (if not, the amount deemed advanced shall be equal to the then outstanding principal balance of the Companion Loan), the amount deemed advanced to be distributed, notwithstanding any other provision contained in this Agreement, to the Borrower’s direct and indirect owners and then, as necessary, recontributed to Companion Borrower simultaneously with such advance, and paid by Companion Borrower as a deemed prepayment and principal reduction of the Companion Loan. The Loan shall be evidenced by the Notes. The Obligations of Borrower under this Agreement, the Notes and the other Loan Documents are secured by, among other things, the Pledge Agreement and the Liens created or arising under the other Loan Documents.

 

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2.2 Interest .

(A) Interest Rate . Subject to the provisions of Section 2.2(C) hereof, the outstanding principal balance of the Loan shall bear interest at the Base Rate. However, (a) during the existence of any Event of Default, or (b) after the Maturity Date, the principal amount of the Loan shall bear interest (“ Default Interest ”) at the Default Rate. With respect to any scheduled payments of principal and interest (excluding the payment due on the Maturity Date), Borrower will be entitled to a grace period of five (5) days from such date before Default Interest is imposed by reason of such late payment; provided , however , if Borrower fails to make the required payment within said five (5) day period, Default Interest will be calculated from the original due date. Except as set forth in the preceding sentence, the Default Interest shall commence, without notice, immediately upon and from the occurrence of (a) or (b) above, as the case may be, and shall continue until all Events of Defaults are expressly waived, in writing, by Lender or the Obligations are paid in full. Default Interest shall be payable upon demand, and, to the extent unpaid, shall be compounded monthly at the Default Rate. The obligations of the Borrower under this Agreement, the Notes and the other Loan Documents are secured by, among other things, the Pledge Agreement.

(B) Computation and Payment of Interest . Interest on the Loan and all other Obligations owing to Lender shall be computed on the daily principal balance of the Notes on the basis of actual days elapsed and a 360-day year. Interest on the Loan is payable in arrears. Payments of interest shall be paid to Lender as specified in Section 2.3. In addition, all accrued and unpaid interest shall be paid to Lender on the earlier of the date of prepayment and maturity, whether by acceleration or otherwise. The Loan shall commence to bear interest on the date the proceeds of the Loan are to be disbursed to or for the order of Borrower, provided, however, if the proceeds are disbursed to an escrowee, the Loan shall commence to bear interest from and including the date of disbursement to such escrowee regardless of the date such proceeds are disbursed from escrow.

(C) Interest Laws . Notwithstanding any provision to the contrary contained in this Agreement or the other Loan Documents, Borrower shall not be required to pay, and Lender shall not be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by law (“ Excess Interest ”). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any of the other Loan Documents, then in such event: (1) the provisions of this Section shall govern and control; (2) Borrower shall not be obligated to pay any Excess Interest; (3) any Excess Interest that Lender may have received hereunder shall be, at Lender’s option, (a) applied as a credit against the outstanding principal balance of the Obligations due and owing to Lender (without any prepayment penalty or premium therefor) or for accrued and unpaid interest thereunder (not to exceed the maximum amount permitted by law), (b) refunded to the payor thereof, or (c) any combination of the foregoing; (4) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “ Maximum Rate ”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (5) Borrower shall not have any action against Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Obligation due and owing to Lender is calculated at the Maximum Rate

 

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rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligations due and owing to Lender shall, to the extent permitted by law, remain at the Maximum Rate until Lender shall have received or accrued the amount of interest which Lender would have received or accrued during such period on Obligations due and owing to Lender had the rate of interest not been limited to the Maximum Rate during such period.

(D) Late Charges . If any scheduled payment of principal and/or interest or other amount (excluding the payment due on the Maturity Date) owing pursuant to this Agreement or the other Loan Documents is not paid when due, Borrower shall pay to Lender, in addition to all sums otherwise due and payable, a late charge (“ Late Charge ”) in an amount equal to four percent (4%) of the unpaid amount. With respect to regular monthly payments of principal and/or interest (excluding the payment due on the Maturity Date), Borrower will be entitled to a grace period of five (5) days from the date due before a late charge is imposed by reason of such late payment. Any unpaid late charge shall bear interest at the Default Rate until paid.

2.3 Payments . Interest for the period commencing on the date of disbursement of the Loan and ending on June 30, 2010 shall be paid on the Closing Date. On each Payment Date thereafter commencing with the Payment Date occurring in August, 2010, Borrower shall pay to Lender (a) with respect to Tranche A, (x) the Monthly P&I Mezz A Installment Amount or (y) if the applicable Resolution Conditions are satisfied prior to the expiration of the Resolution Expiration Period, commencing on the first Payment Date following the date the final applicable Resolution Conditions are satisfied, interest on the outstanding principal of Tranche A accrued from and including the immediately preceding Payment Date, to, but not including, the Payment Date on which such payment is to be made, and (b) with respect to Tranche B, interest on the outstanding principal of Tranche B accrued from and including the immediately preceding Payment Date, to, but not including, the Payment Date on which such payment is to be made. A balloon payment will be required on the Maturity Date.

2.4 Payments and Prepayments on the Loan .

(A) Manner and Time of Payment . Borrower agrees to pay all of the Obligations relating to the Loan as such amounts become due or are declared due pursuant to the terms of this Agreement and the other Loan Documents. All payments shall be made without deduction, defense, setoff or counterclaim (except as expressly provided for in Section 2.8 of this Agreement) by the wire transfer of good immediately available wire transferred federal funds to Lender’s account at JP Morgan Chase Bank, New York, ABA# 021000021, Account #230451489, Account Name: iStar Financial SF Account, Reference: M00153300 Dividend – Fixed Rate, or at such other place as Lender may direct from time to time by at least ten (10) days prior notice to Borrower. Borrower shall receive credit for such funds on the date received if such funds are received by Lender by 1:00 P.M. (Denver time) on such day. In the absence of timely receipt, such funds shall be deemed to have been paid by Borrower on the following Business Day. Whenever any payment to be made under the Loan Documents shall be stated to be due on a day that is not a Business Day, or any time period relating to a payment to be made hereunder is stated to expire on a day that is not a Business Day, the payment may be made on the following Business Day and the period will not expire until the following Business Day.

 

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(B) Maturity . The outstanding principal balance of the Loan, all accrued and unpaid interest thereon and all other sums owing to Lender pursuant to the Loan Documents, shall be due and payable on the day (the “ Maturity Date ”) that is the earlier of (a) June 30, 2020 or (b) the date of acceleration of the Loan by virtue of an Event of Default.

(C) Prepayments .

(i) The Loan may be prepaid, in whole, or in part, upon not less than fifteen (15) days’ prior notice to Lender; provided, however, such notice shall become irrevocable unless revoked by notice from Borrower to Lender given (i) in connection with the Sale of a Property to a Person that is not a member of the DCTRT Group or any of their respective Affiliates or in connection with a Refinancing of a Property where the lender is not a member of the DCTRT Group or any of their respective Affiliates, at any time if such sale or refinance does not occur due to any reason other than the applicable seller’s or borrower’s failure to perform its respective obligations under the applicable Sale Agreement or Refinancing agreement, or (ii) other than in connection with the Sale of a Property or a Refinancing of a Property described in part (i) above, at any time prior to five (5) Business Days before the date such prepayment was scheduled to be made by the notice of prepayment (if no such prepayment date was scheduled, then not later than the twenty-fifth (25 th ) day after the giving of the notice of prepayment by Borrower to Lender). Any prepayments on the principal balance of the Loan evidenced by the Notes whether voluntary or involuntary, shall be accompanied by payment of interest accrued (on the portion of the principal prepaid) to the date of prepayment.

(ii) In the event of a Sale of a Property or a Refinancing, Borrower shall, concurrently with the closing of such Sale of a Property, pay to Lender, as a mandatory prepayment of the Loan an amount equal to the Mezzanine Release Payment Amount as to a Sale of a Property or Net Refinancing Proceeds of such Refinancing as the case may be. From and after payment in full of the Companion Loan, Borrower shall pay to Lender, as a mandatory prepayment of Tranche B and, following payment in full of Tranche B, Tranche A (but only if the applicable Resolution Conditions have been satisfied prior to the expiration of the Resolutions Expiration Period), an amount equal to the amount of the Companion Proceeds concurrently with payment to a Companion Borrower, any member of the DCTRT Group or any of their respective Affiliates of any Companion Proceeds. In the event that the Resolution Conditions have not been satisfied prior to the end of Resolution Expiration Period, Borrower shall not be required to make any mandatory prepayment of Tranche A with respect to, or in connection with, the receipt by any party of Companion Proceeds. Following a Permitted Affiliate Sale of a Property, to the extent that any member of the DCTRT Group or their Affiliates receives any Net Sales Proceeds or Net Refinancing Proceeds from the subsequent Sale of a Property or Refinancing of such Property, Borrower shall, as a mandatory prepayment of the Loan, pay to Lender an amount equal to the amount of such Net Sales Proceeds or Net Refinancing Proceeds concurrently with payment of thereof to any member of the DCTRT Group or any of their respective Affiliates. To the extent that any Harborside Proceeds are received by any member of the DCTRT Group or their Affiliates, Borrower shall, as a mandatory prepayment of the Loan, pay to Lender an amount equal to the amount of such Harborside Proceeds concurrently with payment of Harborside Proceeds

 

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to Harborside Owner, any member of the DCTRT Group or any of their respective Affiliates. If Proceeds exist that are not paid to the Senior Lender in accordance with the Senior Loan Documents or not applied to the repair and restoration of a Property, such Proceeds shall, promptly after receipt by any member of the DCTRT Group or any of their respective Affiliates, be paid to Lender as a mandatory prepayment of the Loan.

(iii) Any and all amounts prepaid hereunder (other than in connection with a Sale of a Property, in which event the Mezzanine Tranche A Minimum Release Amount that is paid shall be applied to Tranche A until Tranche A has been paid in full (and then to Tranche B) and the balance of the Mezzanine Release Payment Amount that is paid shall be applied to Tranche B) shall be applied first to Tranche B until Tranche B has been fully repaid and thereafter to Tranche A; provided, however, in the event that DCTRT or its nominee acquires the Tranche B Promissory Note pursuant to the Tranche B Put Agreement (or DCTRT defaults in its obligation to purchase the Tranche B Promissory Note pursuant to the Tranche B Put Agreement), then from and after any such acquisition (or default), all amounts prepaid shall be applied first to Tranche A until Tranche A has been fully repaid and thereafter to Tranche B.

(iv) Amounts prepaid shall not be reborrowed.

2.5 Lender’s Records; Mutilated, Destroyed or Lost Notes . The balance on Lender’s books and records shall be presumptive evidence (absent manifest error) of the amounts due and owing to Lender by Borrower; provided that any failure to so record or any error in so recording shall not limit or otherwise affect Borrower’s obligation to pay the Obligations. In case any Note shall become mutilated or defaced, or be destroyed, lost or stolen, Borrower shall, upon request from Lender, execute and deliver a new Note of like principal amount in exchange and substitution for the mutilated or defaced Note, or in lieu of and in substitution for the destroyed, lost or stolen Note. In the case of a mutilated or defaced Note, the mutilated or defaced Note shall be surrendered to Borrower upon delivery to Lender of the new Note. In the case of any destroyed, lost or stolen Note, Lender shall furnish to Borrower, upon delivery to Lender of the new Note (i) certification of the destruction, loss or theft of such Note and (ii) such security or indemnity as may be reasonably required by Borrower to hold Borrower harmless.

2.6 Taxes . Except as expressly provided for herein, any and all payments or reimbursements made under the Agreement, the Notes or the other Loan Documents shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto arising out of or in connection with the transactions contemplated by the Loan Documents; excluding, however, the following: taxes imposed on the income of Lender by any jurisdiction or any political subdivision thereof; taxes that are not directly attributable to the Loan; and any “doing business” taxes, however denominated, charged by any state or other jurisdiction (all such taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto, excluding such taxes imposed on income, taxes not directly attributable to the Loan and any “doing business” taxes, herein “ Tax Liabilities ”). If Borrower shall be required by law to deduct any such amounts from or in respect of any sum payable hereunder to Lender, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions, Lender receives an amount equal to the sum it would have received had no such deductions been made. In the

 

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event that, subsequent to the Closing Date, (1) any changes in any existing law, regulation, treaty or directive or in the interpretation or application thereof; (2) any new law, regulation, treaty or directive enacted or any interpretation or application thereof; or (3) compliance by Lender with any new request or directive (whether or not having the force of law) from any governmental authority, agency or instrumentality does or shall subject Lender to any tax of any kind whatsoever with respect to this Agreement, the other Loan Documents or the Loan, or change the basis of taxation of payments to Lender of principal, fees, interest or any other amount payable hereunder (except for income taxes, or franchise taxes imposed in lieu of income taxes, imposed generally by federal, state or local taxing authorities with respect to interest or commitment or other fees payable hereunder or changes in the rate of interest or tax on the overall income of Lender, taxes that are not directly attributable to the Loan and any “doing business” taxes, however denominated, charged by any state or other jurisdiction) and the result of any of the foregoing is to increase the cost to Lender of making or continuing its Loan hereunder, as the case may be, or to reduce any amount receivable hereunder, then, in any such case, Borrower shall promptly pay to Lender, within thirty (30) days after its demand, any additional amounts necessary to compensate Lender, on an after-tax basis, for such additional cost or reduced amount receivable, as determined by Lender with respect to this Agreement or the other Loan Documents. If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.6, it shall promptly notify Borrower of the event by reason of which Lender has become so entitled.

2.7 Application of Payments . Except as otherwise expressly provided in the last sentence of this Section 2.7, all payments made hereunder (other than (x) prepayments and payments in connection with a Sale of a Property, which shall each be applied as between Tranche and Tranche B as provided for in Section 2.4(C)(ii) and (iii) and (y) the payment of the principal portion of the Monthly P&I Mezz A Installment Amount, which shall only be applied to the principal amount of Tranche A) shall be applied pro rata between Tranche A and Tranche B in proportion to the respective amounts thereof then due and owing under Tranche A and Tranche B (provided, however, in the event that DCTRT or its nominee acquires the Tranche B Promissory Note pursuant to the Tranche B Put Agreement (or DCTRT defaults in its obligation to purchase the Tranche B Promissory Note pursuant to the Tranche B Put Agreement), then from and after any such acquisition (or default), payments may be applied as the holder of the Tranche A Promissory Note may elect) in the following order: first, to the payment of any Late Charges and other sums (other than principal and interest) due from Borrower to Lender under the Loan Documents, second, to any interest then due at the Default Rate, third to interest then due at the Base Rate, and last to the principal amount (to be applied first to the principal balance of Tranche B until Tranche B has been fully repaid and thereafter to Tranche A; provided, however, principal amortization payments included in the Monthly P&I Mezz A Installment Amount shall be applied to the principal of Tranche A; provided, further, in the event that DCTRT or its nominee acquires the Tranche B Promissory Note pursuant to the Tranche B Put Agreement (or DCTRT defaults in its obligation to purchase the Tranche B Promissory Note pursuant to the Tranche B Put Agreement), then from and after any such acquisition (or default), all such amounts shall be applied first to the principal balance of Tranche A until Tranche A has been fully repaid and thereafter to Tranche B). During the continuance of an Event of Default, all sums collected by Lender shall be applied in such order of priority to such items set forth below as Lender shall determine in its sole discretion: (i) to the costs and expenses, including reasonable, actual attorneys’ and paralegals’ fees and costs of appeal, incurred in the collection

 

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of any or all of the Loan due or the realization of any collateral securing any or all of the Loan; and (ii) to any or all unpaid amounts owing pursuant to the Loan Documents in any order (and to either Tranche A or Tranche B) of application as Lender, in its sole discretion, shall determine.

2.8 Right of Set-Off; Escrow Fee . Notwithstanding any provision contained herein or any of the Loan Documents to the contrary, Borrower has the right to give notice to Lender that Borrower intends to set off against the payments due Lender pursuant to this Agreement, the amounts that Borrower (or any of its Affiliates) is owed under the Northrop Indemnity and/or may set off against iStar Financial Inc., a Maryland corporation, pursuant to Section 9 of the Purchase Agreement or the Northrop Indemnity, as applicable, in an amount not in excess of the amounts permitted pursuant to such Section 9 of the Purchase Agreement or the Northrop Indemnity, as applicable. If Borrower has given such notice, and the claim asserted by Borrower (or any of its Affiliates) is not resolved to the extent required by the Purchase Agreement or the Northrop Indemnity, as applicable, on or before the expiration of the time period set forth in the Purchase Agreement for resolution of such claim, Borrower will be permitted to setoff the amount claimed without such setoff being a Default so long as (a) Borrower provides Lender with a second notice notifying Lender that it is exercising its rights of set-off in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable; (b) Borrower provides Lender with a certificate of an Authorized Officer certifying that Borrower is asserting its setoff rights in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable; and (c) Borrower deposits, in good immediately available funds, with an independent third-party escrowee reasonably satisfactory to Lender the amount claimed as a set-off, which funds will be held by such escrowee in accordance with an escrow agreement reasonably satisfactory in form and substance to Borrower and Lender. The funds deposited into such escrow may be invested in FDIC insured money-market accounts and the interest thereon shall be deposited into and thereafter constitute part of the escrowed funds. Upon resolution of such claim in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable, the pertinent funds and interest allocable thereto, shall be distributed to the parties entitled thereto in accordance with the Purchase Agreement or the Northrop Indemnity, as applicable, to the effect that, if the funds are to be distributed to Lender, such funds shall be distributed to Lender and no Default or Event of Default shall be deemed to occur by virtue of the delayed payment to Lender (and in such instance, no Late Charge or such other payment shall be imposed and interest shall not accrue at the Default Rate on such payment except to the extent Late Charges and Default Interest may otherwise be owed pursuant to this Agreement) and if the funds are to be distributed to Borrower, then, to the extent of the funds claimed as a setoff (and not interest allocable thereto), such amount shall be deemed to be applied as a reduction of the principal amount of the Loan as of the date Borrower first sent notice to Lender claiming a right of set-off (to be applied first to Tranche B until Tranche B has been fully repaid and thereafter to Tranche A; provided, however, in the event that DCTRT or its nominee acquires the Tranche B Promissory Note pursuant to the Tranche B Put Agreement (or DCTRT defaults in its obligation to purchase the Tranche B Promissory Note pursuant to the Tranche B Put Agreement), then from and after any such acquisition (or default), all such amounts shall be applied first to the Tranche A until Tranche A has been fully repaid and thereafter to Tranche B).

 

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SECTION 3

CONDITIONS TO LOAN

3.1 Conditions to Funding of the Loan on the Closing Date . The obligation of Lender to disburse the Loan is subject to the prior or concurrent satisfaction of the conditions set forth below.

(A) Performance of Agreements; Truth of Representations and Warranties; No Injunction . The representations and warranties of each Loan Party contained in the Loan Documents shall be true, correct and complete in all material respects on and as of the Closing Date to the same extent as though made on and as of that date. No Legal Requirements shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued or entered, and no litigation shall be pending or threatened, which in the reasonable judgment of Lender would enjoin, prohibit or restrain, or impose or result in a Material Adverse Effect upon the making or borrowing of the Loan or the execution, delivery or performance of the Loan Documents. No Default or Event of Default shall have occurred and then be continuing.

(B) Opinion of Counsel . Lender shall have received and approved written opinions of counsel for the Loan Parties, in form and substance reasonably satisfactory to Lender and its counsel, dated as of the Closing Date. By execution of this Agreement, Borrower authorizes and directs its counsel to render and deliver such opinions to Lender.

(C) Loan Documents . On or before the Closing Date, Borrower shall execute and deliver and cause to be executed and delivered, to Lender all of the Loan Documents and the Put Agreements, each, unless otherwise noted, dated the Closing Date, duly executed, in form and substance satisfactory to Lender and in quantities designated by Lender (except for the Tranche A Promissory Note and the Tranche B Promissory Note, of which only the original shall be executed). Borrower hereby authorizes Lender to file the Financing Statements in such filing offices as Lender elects.

(D) Insurance Policies and Endorsements . Lender shall have received the policies of insurance required to be maintained under this Agreement and the other Loan Documents. If such policies are not delivered to Lender, Lender must receive a copy of the insurance policies in question and evidence of such insurance satisfactory to it.

(E) Organizational and Authorization Documents . Lender shall have received all documents reasonably requested by Lender, including all Organizational Documents, with regard to the due organization, existence, internal governance, power and authority, due authorization, execution and delivery, authorization to do business and good standing of each member of the DCTRT Group, and such other Persons as Lender may reasonably designate, the validity and binding effect of the Loan Documents and other matters relating thereto, in form and substance satisfactory to Lender.

(F) Closing Statement . Lender shall have received and approved a closing and disbursement statement executed by Borrower with respect to the disbursement of the proceeds of the Loan.

 

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(G) Appointment of Agent for Service of Process . Lender shall have received and approved a letter appointing (and accepted by) National Registered Agents, Inc. as the Loan Parties’ agent for service of process.

(H) Title Insurance Policy, Searches, Perfection and Priority . Lender shall have (i) received the Title Insurance Policy and (ii) received and approved copies of UCC financing statement, judgment, tax lien, bankruptcy and litigation search reports of such jurisdictions and offices as Lender may reasonably designate with respect to Borrower, Property Owners, Holdco, any other Intervening Entities and such other Persons as Lender may reasonably require.

(I) Surveys . Lender shall have received plats of survey for each of the Properties.

(J) Other Documents and Deliveries . Borrower shall have delivered such other documents and deliveries as are set forth on the Closing Checklist attached hereto as Exhibit E .

(K) UCC Policy . Lender shall have received the UCC Policy.

(L) Senior Loan Matters . Lender shall have received a true and complete copy of the Senior Loan Documents accompanied by Borrower’s certificate to such effect. No Senior Loan Default or Senior Loan Event of Default shall then exist.

(M) Intercreditor Agreement . Lender and Senior Lender shall have executed and delivered the Intercreditor Agreement to each other.

(N) Companion Loan Agreement . The “Closing” as defined in the Companion Loan Agreement shall have occurred.

(O) Purchase Agreement . The “Closing” as defined in the Purchase Agreement shall have occurred.

(P) Member Agreement . The “Closing” as defined in the Member Interest Purchase and Sale Agreement dated as of May 3, 2010 between iStar Harborside LLC and TRT Acquisitions LLC, as amended, shall have occurred.

SECTION 4

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to Lender that, after giving effect to the Loan, as of the Closing Date:

4.1 Organization, Powers, Qualification and Organization Chart . Each Related Party is a limited liability company or limited partnership, that is duly organized, validly existing and in good standing under the laws of its state of formation and has all requisite power and authority to own and operate its properties and to carry on its business as now conducted. Borrower and Carveout Guarantor have all requisite power and authority to enter into each Loan Document to which it is a party and to perform their respective obligations thereunder. DCTRT is a corporation, duly formed or organized, validly existing and in good standing under the laws of its state of formation and has all requisite power and authority to own and operate its properties, to

 

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carry on its business as now conducted, and to enter into each Loan Document to which it is a party and the Put Agreements. Borrower’s U.S. taxpayer identification number is set forth on Schedule 4.1(A)-1 . Each member of the DCTRT Group is duly qualified and in good standing wherever necessary to carry on its present business and operations. The organization chart attached hereto as Schedule 4.1(A)-2 correctly identifies each Person directly owning (and/or indirectly owing five percent (5%) or more of) the ownership interests in Borrower, Holdco and Property Owners, and the direct Subsidiaries, indirect Subsidiaries, and each member of the Intervening Entities and Property Owners. The principal place of business and chief executive office of Borrower, Intervening Entities and Property Owners is set forth on Schedule 4.1(A)-3 . Schedule 4.1(A)-4 identifies the correct legal name, jurisdiction of formation, organization number, type of entity (e.g., corporation, limited partnership, limited liability company, etc.), of each member of the Intervening Entities and Property Owners and also, in the case of the Property Owners, the Property owned by such Property Owner. Each member of the DCTRT Group has filed on or prior to the date due (subject to lawfully permitted and made extensions) all reports, documents and other materials required to be filed by it with any Governmental Authorities, the failure of which would result in a Material Adverse Effect. Borrower has provided to Lender a true and complete copy of the Organizational Documents of each member of the DCTRT Group. The organizational chart attached hereto as Schedule 4.1(A)-5 correctly identifies each Person directly owning (and/or indirectly owning 5% or more of) the Harborside Property and Harborside Owner.

4.2 Authorization of Borrowing; No Conflicts; Governmental Consents; Binding Obligations and License and Security Interests of Loan Documents . Borrower has the power and authority to be a member in Holdco, to incur the Obligations evidenced by the Notes and other Loan Documents, to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder and to continue its businesses and affairs as presently conducted. Each Intervening Entity has the power and authority to be a partner or member, as applicable, in each Person that it is a partner or member in, including the Persons as shown on Schedule 4.1(A)-2 . Each Property Owner has the power and authority to own its Property and to continue its businesses and affairs as presently conducted. DCTRT and Carveout Guarantor has the power and authority to execute and deliver the Put Agreements and Carveout Guaranty, as applicable. The incurring of the Obligations by Borrower and the execution, delivery and performance by each of the Loan Parties of each of the Loan Documents and the Put Agreements to which it is a party, the consummation of the transactions contemplated thereby have been duly authorized by all necessary partnership, corporate or limited liability company action, as the case may be. The incurring of the Obligations by Borrower and the execution, delivery and performance by each Loan Party of the Loan Documents and the Put Agreements to which it is a party, the consummation of the transactions contemplated thereby and the exercise of Lender’s rights and remedies under the Loan Documents and the Put Agreements, do not and will not: (1) violate any provision of law applicable to any member of the DCTRT Group, the respective Organizational Documents of, or any order, judgment or decree of any court or other agency of government binding on any member of the DCTRT Group or their respective properties; (2) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under the Senior Loan Documents or any other material agreement or document to which any member of the DCTRT Group is a party or by which such Person or its property may be bound; (3) result in or require the creation or imposition of any Lien upon the Properties, the Collateral or any assets of any member of the DCTRT Group (other than the Liens of Lender); or

 

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(4) subject to the Intercreditor Agreement, require any approval or consent of any Person under the Senior Loan Documents, the Organizational Documents of any member of the DCTRT Group or any other agreement or document to which such Person is a party or by which such Person or its property may be bound (except to the extent such approvals or consents have been unconditionally obtained on or before the Closing Date). The incurring of the Obligations, the execution, delivery and performance by each Loan Party of the Loan Documents and the Put Agreements to which it is a party, the consummation of the transactions contemplated thereby and the exercise of Lender’s rights and remedies under the Loan Documents and the Put Agreements do not and will not require any (as to any member of the DCTRT Group) registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other Governmental Authority or regulatory body (except to the extent unconditionally obtained on or before the Closing Date). The Loan Documents and the Put Agreements, when executed and delivered by each Loan Party, as applicable, will be the legally valid and binding obligations of such Loan Parties, as applicable, enforceable against the Loan Parties, subject to bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditors’ rights generally and to the application of general equitable principles in connection with the enforcement thereof. The Pledge Agreement, together with the Financing Statements to be filed in connection therewith, create a valid, enforceable and perfected first priority lien and security interest in the Collateral subject to no other interests, Liens or encumbrances. Borrower is a “registered organization” (as defined in the UCC) organized under the laws of the State of Delaware. The proper office in which to file a financing statement to perfect a security interest that may be perfected by filing under the UCC in the Collateral is the office of the Secretary of State of Delaware. The membership interests in Holdco are “securities” (as defined in the UCC) and are certificated. All certificates representing membership interest in Holdco have been delivered by Borrower and no other certificates exist. Lender has a perfected first priority security interest in the Pledged Interests by “control” (within the meaning of the UCC). The Pledged Interests have been duly and validly issued and are non-assessable. No Person has any right or option to acquire any interest in Holdco, any Intervening Entities or any Property Owner except Lender pursuant to the Loan Documents.

4.3 Indebtedness . As of the Closing Date, after giving effect to the transactions contemplated hereby, Borrower does not have any Indebtedness other than Permitted Indebtedness, no Intervening Entity has any Indebtedness and no Property Owner has any Indebtedness other than the Senior Loan and Indebtedness permitted under the Senior Loan Documents.

4.4 Title .

(A) Property Owners have fee simple title to the Properties and have not incurred any Indebtedness secured by Liens not permitted under the Senior Loan Documents. Holdco has, directly or indirectly, title to 100% of the membership interests in the Intervening Entities (other than Holdco), free and clear of Liens and other interests. Each Intervening Entity (other than Holdco and TRT NOIP Fixed CALP Holdco) is the sole general partner or sole limited partner, free and clear of other interests, in a Property Owner that is a limited partnership or the sole member in and owner of 100% of the membership interests in each Property Owner that is a limited liability company free and clear of Liens and other interests. No Person that is not directly or indirectly wholly-owned by Holdco is a general or limited partner in a Property Owner. Each general partner and limited partner in a Property Owner is the sole holder of such

 

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general partnership, or, limited partnership interest, as the case may be, free and clear of Liens and other interests. Borrower is the direct or indirect owner of all of the ownership interests in the Intervening Entities and Property Owners. DCT Real Estate Holdco LLC is the sole member in and owner of 100% of the membership interests in Borrower free and clear of Liens and other interests. Carveout Guarantor is the sole member in and owner of 100% of the membership interests in DCT Real Estate Holdco LLC free and clear of Liens and other interests. DCTRT is the sole member in and owner of 100% of the membership interests in Carveout Guarantor free and clear of Liens and other interests

(B) Borrower has good title to the membership interest in Holdco free and clear of Liens and other interests (other than Liens in favor of Lender), owns 100% of the membership interest in Holdco and is the sole member in Holdco.

(C) No Default, Event of Default, Senior Loan Default or Senior Loan Event of Default exists and, to the best of Borrower’s knowledge, no fact, circumstance, condition or event has occurred or exists which might within the giving of notice and/or the expiration of an applicable grace or curative period, ripen into an Event of Default or Senior Loan Event of Default. Except for the Senior Loan Documents, Property Owners, Intervening Entities and Holdco are not subject to any restriction or limitation on their ability to distribute funds to the Borrower.

(D) Borrower has provided Lender with true and complete copies of all Senior Loan Documents.

4.5 Litigation . There are no judgments outstanding against any Related Parties or Carveout Guarantor that would have a Material Adverse Effect, nor to Borrower’s knowledge, is there any litigation, governmental investigation or arbitration pending or threatened in writing against any Related Party or Carveout Guarantor that if, adversely determined, is likely to have a Material Adverse Effect. No petition in bankruptcy, whether voluntary or involuntary, or assignment for the benefit of creditors has ever been filed under the laws of the United States of America or any state thereof by or against any member of the DCTRT Group.

4.6 Payment of Taxes . All tax returns and reports of each member of the DCTRT Group required to be filed by such Persons have been timely filed, and all taxes, assessments, fees and other governmental charges upon the Collateral or the membership interests in Holdco which are due and payable as of the Closing Date have been paid in full. All taxes that each member of the DCTRT Group are or were required by Legal Requirements to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the applicable Governmental Authority.

4.7 Governmental Regulation; Margin Loan . No member of the DCTRT Group is, and after giving effect to the Loan, will not be, subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940 or to any federal or state statute or regulation limiting its ability to incur indebtedness for borrowed money. Borrower shall use the proceeds of the Loan only for the purposes set forth in this Agreement. No portion of the proceeds of the Loan shall be used by Borrower in any manner that might cause the borrowing or the application of such proceeds to violate Regulation U,

 

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Regulation T or Regulation X or any other regulation of the Board of Governors of the Federal Reserve System or to violate the Exchange Act or any other Legal Requirements. The Loan does not violate the Truth-in-Lending Act (15 U.S.C.A. §§ 1601 et seq. ). Borrower is not a non-resident alien for purposes of U.S. income taxation, and Borrower is not a foreign corporation, partnership, foreign trust or foreign estate (as said terms are defined in the United States Internal Revenue Code). No member of the DCTRT Group is, and shall not become, a Person ( “Embargoed Person” ) with whom Lender is restricted from doing business with under regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including, but not limited to, the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental action relating to terrorism financing, terrorism support and/or otherwise relating to terrorism and are not and shall not engage in any dealings or transaction or otherwise be associated with Persons named on OFAC’s Specially Designated and Blocked Persons list.

4.8 ERISA . Borrower is not an “employee benefit plan” (within the meaning of section 3(3) of ERISA) to which ERISA applies and Borrower’s assets do not constitute plan assets. The Loan, the execution, delivery and performance of the Loan Documents and the transactions contemplated by this Agreement are not a non-exempt prohibited transaction under ERISA.

4.9 Broker’s Fees . Except for Hudson River Partners Real Estate Investment Management LP (“ Borrower’s Advisor ”), no broker’s or finder’s fee, commission or similar compensation will be payable with respect to the Loan, the issuance of the Notes or any of the other transactions contemplated hereby or by any of the Loan Documents or the Put Agreements based upon any broker engaged by a member of the DCTRT Group or its Affiliates. Borrower shall pay all fees, commissions and compensation due and owing to Borrower’s Advisor in connection with the transaction contemplated hereby. Lender represents and warrants that no broker’s or finder’s fee, commission or similar compensation will be payable with respect to the Loan, the issuance of the Notes or any of the other transactions contemplated hereby or by any of the Loan Documents or the Put Agreements based upon any broker engaged by Lender in connection with the origination of the Loan, except the fee payable to HFF Securities L.P., an affiliate of Holliday Fenoglio Fowler, L.P. (“ Lender’s Advisor ”). Lender shall pay all fees, commissions and compensation due and owing to Lender’s Advisor in connection with the transaction contemplated hereby.

4.10 Solvency . As of the date of this Agreement and after giving effect to the consummation of the transactions contemplated by the Loan Documents, Borrower, and each of the members of the DCTRT Group: (A) owns and will own assets the fair saleable value of which are (1) greater than the total amount of its respective liabilities (including Contingent Obligations), and (2) greater than the amount that will be required to pay its probable liabilities and its then existing debts as they become absolute and matured considering all reasonably available financing alternatives and potential asset sales; (B) has capital that is not insufficient in relation to its business as presently conducted or any contemplated or undertaken transaction; and (C) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due. The Loan Parties have not entered into the Loan Documents or the transactions contemplated under the Loan Documents with the actual intent to hinder, delay, or defraud any creditor.

 

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4.11 Insurance . Schedule 4.11 sets forth a complete and accurate description of all policies of insurance that will be in effect as of the Closing Date for Borrower, Intervening Entities and the Property Owners. All premiums thereon have been paid in full through the first anniversary of the Closing Date and no notice of cancellation has been received with respect to such policies.

4.12 Single Purpose Bankruptcy Remote Entities . Borrower hereby represents, warrants, agrees and covenants that Property Owners and the Intervening Entities have been or and all times shall be a Person that is a Special Purpose Entity. Borrower hereby represents, warrants, agrees and covenants that Borrower has, at all times, from its formation, been, and, at all times will be, a Special Purpose Bankruptcy Remote Entity.

4.13 Representations Remade . Borrower warrants and covenants that the foregoing representations and warranties will be true and shall be deemed remade as of the date of the Closing. All representations and warranties made by Borrower or Carveout Guarantor in the other Loan Document or in any certificate or other document delivered to Lender by or on behalf of Borrower pursuant to the Loan Documents shall be deemed to have been relied upon by Lender, notwithstanding any investigation made by or on behalf of Lender. All such representations and warranties shall survive the making of the Loan and any or all of the advances of the Loan and shall continue in full force and effect until such time as the Loan has been paid in full.

SECTION 5

AFFIRMATIVE COVENANTS

Borrower covenants and agrees that so long as this Agreement shall remain in effect or the Notes shall remain outstanding, Borrower shall perform and comply with all covenants in this Section 5.

5.1 Financial Statements and Other Reports . Borrower will maintain, and will cause the Property Owners and Intervening Entities to maintain, a system of accounting in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP (or such other accounting method as is permitted under the Senior Loan Documents) and proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower, Holdco and the Intervening Entities.

(A) Financial Statements (Senior Loan) . Borrower will, not later than the applicable time specified in the Senior Loan Documents (subject to such extensions as the Senior Lender may grant), deliver to Lender, true and complete copies of all financial statements, and other financial certificates, reports and information required to be provided by the Property Owners to the Senior Lender, including to the extent so required, rent rolls and debt service yield and/or coverage calculations and certificates.

(B) Notices, Events of Default and Litigation . Borrower shall promptly deliver, or cause to be delivered, copies of all material written notices, certificates, demands, reports or requests given to, or received by Borrower, Holdco, any Intervening Entity or any Property

 

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Owner from any Governmental Authorities or the Senior Lender or with respect to any Indebtedness of Borrower, Holdco, any Intervening Entity or any Property Owner, and shall promptly notify Lender after Borrower receives written notice or acquires actual knowledge of, any material violation of Legal Requirements, investigation, subpoena or audit by any Governmental Authority or default with respect to any Property or any Indebtedness of Borrower, Intervening Entities or Property Owners. Promptly upon Borrower obtaining actual knowledge of any of the following events or conditions, Borrower shall deliver a certificate specifying the nature of such condition or event that constitutes a Default, Event of Default, Senior Loan Default or Senior Loan Event of Default. Promptly upon Borrower obtaining actual knowledge of (1) the institution of any action, suit, proceeding, governmental investigation or arbitration against or affecting any member of the DCTRT Group or any Property that, if adversely determined, would or might reasonably be expected to have a Material Adverse Effect, or (2) any other or any material development in any such action, suit, proceeding, governmental investigation or arbitration at any time pending against or affecting any such Person or any Property that, if adversely determined, would or might reasonably be expected to have a Material Adverse Effect, Borrower will give notice thereof to Lender and provide such other information as may be reasonably available to it to enable Lender and its counsel to evaluate such matters.

(C) ERISA . Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as Lender, in its reasonable discretion, may request, that (A) Property Owners, Holdco, Intervening Entities and Borrower are not and do not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan’ within the meaning of Section 3(3) of ERISA; (B) the Property Owners, Holdco, Intervening Entities and Borrower are not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true: (i) equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2); (ii) less than twenty-five percent (25%) of each outstanding class of equity interests in Property Owners, Holdco and Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or (iii) Property Owners, Intervening Entities and Borrower each qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

(D) Intentionally Omitted .

(E) Estoppel Certificates . Within ten (10) Business Days following a request by Lender, but not more often than one time per calendar year (and, as Lender may request, in connection with a Securitization), Borrower shall provide to Lender, a duly acknowledged written statement confirming the amount of the outstanding Obligations, the terms of payment and maturity date of the Notes, the date to which interest has been paid, and whether, to Borrower’s knowledge, any offsets or defenses exist against the Obligations, and if any such offsets or defenses are alleged to exist, the nature thereof shall be set forth in detail. Within ten (10) Business Days following a request from Lender, but not more often than one time per calendar year (and, as Lender may reasonably request, in connection with a Securitization), Borrower shall cause each Property Owner to request Senior Lender to provide to the Lender estoppel certificates, if any, that the Senior Lender is required to provide to a Property Owner pursuant to the Senior Loan Documents and shall thereafter use reasonable efforts to obtain such

 

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certificate and deliver it to Lender. Within ten (10) Business Days following a request by Borrower, but in no event more than twice per calendar year, Lender shall provide to Borrower, a duly acknowledged written statement confirming the then outstanding principal amount of the Loan, the scheduled maturity date of the Loan, the date to which interest on the Loan has been paid, and whether, to Lender’s knowledge, any Defaults or Events of Default have occurred under the Loan Documents that have not been cured or waived by Lender.

(F) Other . With reasonable promptness, Borrower will deliver such other information and data in the possession or control of Borrower or any other member of the DCTRT Group with respect to the members of the DCTRT Group, the Properties and the Collateral as from time to time may be reasonably requested by Lender.

(G) Electronic Format . Borrower will use reasonable efforts to provide to Lender a copy of any reports, notices, statements or other deliveries required pursuant to this Section 5.1 in an electronic format reasonably satisfactory to Lender.

(H) DCTRT . In the event that DCTRT shall cease to be Person required under applicable law to file reports with the United States Securities and Exchange Commission, Borrower shall cause DCTRT to provide financial reports and other information to Lender substantially equivalent to the reports to be filed with the United States Securities and Exchange Commission under applicable law within the time periods for filing required, as of the Closing Date, under applicable securities laws; provided that Lender shall enter into a confidentiality agreement regarding confidential information regarding DCTRT provided to Lender by DCTRT reasonably satisfactory in form and substance to Lender, Borrower and DCTRT.

(I) Sale and Refinancing; Harborside . Promptly after execution and delivery thereof, Borrower shall provide, or cause to be provided to Lender, a true and complete copy of any Sale Agreement and amendments and modifications thereof. Promptly after a Property Owner’s receipt of same (or receipt by any member of the DCTRT Group or any of their respective Affiliates of same), Borrower shall provide, or cause to be provided to Lender, a true and complete copy of all term sheets, applications and commitments in respect of a proposed or actual Refinancing. Borrower shall provide, or cause to be provided, to Lender, notice of any proposed sale, disposition, financing or refinancing of any part of the Harborside Property or Harborside Interests and shall, not later than three (3) Business Days before the closing of any such sale, disposition, financing or refinancing, provide, or cause to be provided to Lender, a true and complete copy of, as applicable, the purchase and sale agreement (or analogous document) and all amendments thereto or documents evidencing, securing or governing any loan in respect of a financing or refinancing and amendments thereto, the executed closing and disbursement statement for such sale, disposition, financing or refinancing, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Harborside Proceeds and the calculation thereof, such evidence as Lender may reasonably require confirming the amount of the Harborside Proceeds and that Lender will receive payment of an amount equal to such Harborside Proceeds concurrently with the closing of the related sale, disposition, financing or refinancing.

(J) Other . Borrower shall provide, or cause to be provided to Lender, upon Lender’s request, with true and complete copies of all documents that would constitute Approval Matters were an Event of Default then existing and true and complete copies of all Senior Loan Documents.

 

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5.2 Existence; Qualification . Borrower will, and Borrower will cause each other member of the DCTRT Group to, at all times preserve and keep in full force and effect its existence, and all rights and franchises, if any, material to their respective businesses. Borrower will continue, and will cause each other member of the DCTRT Group to continue, to be qualified in all jurisdictions in which such Person is required to qualify.

5.3 Payment of Impositions . Subject to Section 2.6, Borrower shall pay any and all taxes, charges, filing, registration and recording fees, excises and levies imposed upon Lender by reason of its interests in, or measured by amounts payable under the Loan Documents (other than income, franchise and doing business taxes), and shall pay all stamp taxes and other taxes required to be paid on any of the Loan Documents. If Borrower fails to make such payment within five (5) Business Days after notice thereof from Lender, Lender may (but shall not be obligated to) pay the amount due, and Borrower shall reimburse Lender on demand for all such advances which will bear interest at the Default Rate.

5.4 Insurance .

(A) Borrower shall at all times provide, maintain and keep in force or cause to be provided, maintained and kept in force, at no expense to Lender, the policies of insurance with respect to the Properties and Property Owners required pursuant to the Senior Loan Documents.

(B) All insurance policies required pursuant to this Agreement shall be endorsed to provide that: (i) Borrower, Holdco and Lender, their successors and/or assigns, are named as additional named insureds on all liability coverage, with the agreement that any obligation imposed upon the insureds (including the liability to pay premiums) shall be the sole obligation of Property Owners and not of any other insured; (ii) the interests of Lender shall not be invalidated by any action or inaction of Property Owners, Borrower, Holdco or any other Person, and such policies shall insure Lender regardless of any breach or violation by Borrower, Property Owners, Holdco or any other Person of any warranties, declaration or conditions in such policies; (iii) the insurer under each such policy shall waive all rights of subrogation against Lender, any right to set-off and counterclaim and any other right to deduction, whether by attachment or otherwise; (iv) such insurance shall be primary and without right of contribution of any other insurance carried by or on behalf of Lender or Senior Lender; (v) if such insurance is canceled for any reason whatsoever, including nonpayment of premium or, if any substantial modification, change or reduction is made in the coverage which affects the interests of Lender, such cancellation, modification, change or reduction in coverage shall not be effective as to Lender until thirty (30) days after receipt by Lender of written notice sent by registered mail from such insurer; and (vi) any such insurance shall be endorsed to provide in as much as the policy is written to cover more than one insured, all terms, conditions, insuring agreements and endorsements with the exception of limits of liability, shall operate in the same manner as if there were a separate policy covering each insured.

 

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(C) Borrower shall deliver to Lender a certificate evidencing each insurance policy, and, if requested by Lender, a copy of each insurance policy. Renewal certificates (and, if requested by Lender, copies of policies) should be provided no later than fifteen (15) days prior to the expiration of each policy. Borrower shall deliver a copy of a certificate evidencing renewed policy or policies, marked “premium paid,” or accompanied by such other evidence of payment reasonably satisfactory to Lender with standard non-contributory mortgagee clause in favor of and acceptable to Lender. No insurance policy may provide for assessments to be made against Lender or Lender’s servicer, if any. Lender shall not, by the fact of approving, disapproving, accepting, preventing, obtaining or failing to obtain any insurance, incur any liability for or with respect to the amount of insurance carried, the form or legal sufficiency of insurance contracts, solvency of insurance companies, or payment or defense of lawsuits, and Borrower hereby expressly assumes full responsibility therefore and all liability, if any, with respect thereto. If Borrower fails to provide (or cause Property Owners to provide) to Lender the policies of insurance required by this Section 5.4 or any other Loan Documents, Lender may (but shall have no obligation to) procure such insurance or single-interest insurance for such risks and Borrower will pay all premiums thereon promptly upon demand by Lender, and until such payment is made by Borrower, the amount of all such premiums shall bear interest at the Default Rate and shall constitute additions to the Obligations.

5.5 Inspection; Lender Meeting . Borrower shall, at reasonable business hours and upon reasonable prior notice upon request from Lender and subject to the rights of tenants under applicable Leases, permit (and cause to be permitted) Lender’s designated representatives to (a) visit, examine, audit, and inspect the Properties, (b) examine, audit, inspect, copy, duplicate and abstract Borrower’s, Holdco’s, Intervening Entities’ and Property Owners’ financial, accounting and other books and records, and (c) discuss Borrower’s, Property Owners’, Intervening Entities’, Holdco’s and the Properties’ affairs, finances and business with Property Owners’, Intervening Entities’, Holdco’s and Borrower’s officers, senior management, representatives, independent public accountants and agents. Borrower shall cause its books and records and the books and records of Property Owners and Intervening Entities to be maintained at the principal offices of such Persons located at 518 17 th Street, Suite 1700, Denver, CO 80202. Borrower will not change (or permit Intervening Entities or Property Owners to change) its principal offices or the location where its books and records are kept without giving at least thirty (30) days’ advance notice to Lender. Borrower shall pay Lender’s reasonable, actual costs and expenses incurred in connection with such annual audit if an Event of Default has occurred. All audits, inspections and reports shall be made for the sole benefit of Lender. Neither Lender nor Lender’s auditors, inspectors, representatives, agents or contractors assumes any responsibility or liability (except to Lender) by reason of such audits, inspections or reports. Borrower will not rely upon any of such audits, inspections or reports. The performance of such audits, inspections and reports will not constitute a waiver of any of the provisions of the Loans Documents. Borrower shall cooperate, from time to time, with Lender and use reasonable efforts to assist Lender in obtaining an appraisal of the Properties (or any one or more of them). Such cooperation and assistance from Borrower shall include reasonable access to the Properties (or any one or more of them) subject to the rights of tenants under applicable Leases and upon reasonable prior notice and books and records pertaining to the Properties (or any one or more of them) for Lender and its appraiser. The appraiser performing any such appraisal shall be engaged by Lender. Borrower shall not be responsible for the expenses of any such appraisal.

 

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5.6 Compliance with Laws . Borrower will comply and cause the Property Owners and the Properties to comply, in all material respects, with the requirements of all Legal Requirements, including Environmental Laws, and the orders and requirements of any Governmental Authority in all jurisdictions in which it is now doing business or may hereafter be doing business, the failure to comply with would be a Senior Loan Default or Senior Loan Event of Default or has, or might reasonably be expected to have, a Material Adverse Effect.

5.7 Further Assurances . Borrower shall, from time to time, at its sole cost and expense, execute and/or deliver, or cause execution and/or delivery of, such documents, agreements and reports, and perform such acts as Lender at any time may reasonably request to carry out the purposes and otherwise implement the terms and provisions provided for in the Loan Documents. Borrower shall execute any documents and take any other actions necessary to provide Lender with a first priority, perfected security interest in the Collateral. Borrower shall, at Borrower’s sole cost and expense: (i) upon Lender’s request therefore given from time to time (but not more frequently than once per calendar year unless an Event of Default then exists) pay for (a) current reports of Uniform Commercial Code, federal tax lien, state tax lien, judgment and pending litigation searches with respect to members of the DCTRT Group, and (b) current good standing and existence certificates with respect to members of the DCTRT Group; and (ii) execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary, to evidence, preserve and/or protect the Collateral at any time securing or intended to secure the Obligations, as Lender may require in Lender’s reasonable discretion. Borrower shall promptly execute, acknowledge, deliver, file or do, at its sole cost and expense, all acts, assignments, notices, agreements or other instruments as Lender may require in order to effectuate, assure, convey, secure, assign, transfer and convey unto Lender any of the rights granted by the Loan Documents and to more fully perfect and protect any assignment, pledge, lien and security interest confirmed or purported to be created under the Loan Documents or to enable Lender to exercise and enforce their rights and remedies hereunder, in respect of the Collateral.

5.8 Property Owners and Holdco . Borrower shall cause Property Owners and the other members of the DCTRT Group to maintain their legal existence. Borrower shall cause Property Owners to perform all of Property Owners’ material obligations under the Senior Loan Documents as and when required pursuant to the Senior Loan Documents. Subject to the terms of the Senior Loan Documents, Borrower shall cause Property Owners and the Intervening Entities to timely make sufficient distributions of their respective funds (to the extent available) to enable Borrower to comply with its obligations under the Loan Documents. If no Senior Loan exists, Borrower will, if requested by Lender, promptly execute and deliver to Lender such amendments to this Agreement as Lender may reasonably require to, in effect, incorporate the “affirmative” and “negative” covenants and agreements to set forth in the then most recently existing Senior Loan Documents into this Agreement.

5.9 Special Purpose Entity . Borrower shall, at all times, be a Special Purpose Bankruptcy Remote Entity.

 

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SECTION 6

INTENTIONALLY OMITTED

SECTION 7

NEGATIVE COVENANTS

Borrower covenants and agrees that from the date hereof and so long as this Agreement shall remain in effect or the Notes remain outstanding, Borrower shall comply with all covenants and agreements in this Section 7.

7.1 Indebtedness . Borrower will not directly or indirectly create, incur, assume, guaranty, or otherwise become or remain directly or indirectly liable (or permit any Property Owners (except with respect to a Senior Loan and other Indebtedness permitted under the Senior Loan Documents) or Intervening Entities to become so liable) with respect to any Indebtedness except Permitted Indebtedness and Indebtedness that is being contested in good faith and do not become a Lien on the Property or Collateral.

7.2 Liens and Related Matters . Borrower will not directly or indirectly create, incur, assume or permit to exist (or allow Intervening Entities or Property Owners to directly or indirectly create, incur, assume or permit to exist) any Lien on or with respect to the Properties (other than, in the case of Property Owners, Liens created pursuant to the Senior Loan Documents or otherwise permitted under the Senior Loan Documents), the Collateral or any membership, partnership or other ownership interest in the Property Owners and the Intervening Entities, whether now owned or hereafter acquired, or any income or profits therefrom in each instance unless with respect to a Lien on a Property not permitted under the Senior Loan Documents such Lien is, in compliance with the Senior Loan Documents, being contested in good faith or has been bonded over.

7.3 Senior Loan Documents .

(A) Without Lender’s consent, Borrower shall not (and shall not permit Intervening Entities and Property Owners to) (i) amend, modify or waive the performance of material obligations with regard to the Senior Loan Documents or agree to any Modification, or (ii) request a waiver or consent from, the Senior Lender or any party to, or issuer of any of the Senior Loan Documents without at least ten (10) days’ advance notice to Lender. Notwithstanding the foregoing provisions of this Agreement, any Modification of the Senior Loan Documents that is a Permitted Modification is not an Event of Default and shall be permitted without Lender’s consent. A “ Permitted Modification ” means (i) the Earn-Out Amendment, and/or (ii) any other amendment, modification, waiver, restatement or analogous documentation (each a “ Modification ”) that amends, modifies, waives, supplements, extends, compromises, renews or restates, all or any of the Senior Loan Documents with respect to which (a) after giving effect to any such amendment, modification, waiver, restatement or analogous documentation, the Debt Service Coverage Ratio is not less than the Debt Service Target Ratio; (b) the Modification is on market terms; (c) the Loan is not further subordinated to the Senior

 

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Loan; (d) the principal amount of the Senior Loan shall not be increased except to the extent such excess is, on a dollar-for-dollar basis paid to Lender and applied to the principal of the Loan; (e) none of the Borrower or Intervening Entities shall have guaranteed any such Senior Loan or incurred any Indebtedness; (f) Borrower shall have given Lender not less than ten (10) days advance notice of Modification, which advance notice shall be accompanied by a true and complete copy of the Modification; and (g) concurrently with the effectiveness of the Modification in question, Borrower shall have provided Lender with a certificate of an Authorized Officer that such Modification is a Permitted Modification. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable third party attorneys’ fees) in confirming that a Modification is a Permitted Modification.

(B) Borrower will not acquire, or permit any member of the DCTRT Group or any of their respective Affiliates to acquire the Senior Loan, any portion of the Senior Loan, any direct or indirect participation or other interest in or Lien upon the Senior Loan or holder thereof or any direct or indirect ownership interest in any Senior Lender.

7.4 Restriction on Fundamental Changes . Borrower will not (and Borrower will not permit Property Owners and Intervening Entities to): (1) amend, modify or waive in any material respect any term or provision of its Organizational Documents, except for Permitted Organization Modifications, (2) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); (3) hereafter acquire by purchase or otherwise all or any part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person; or (4) allow any ownership interests in Property Owners or Intervening Entities to become certificated or “securities” (as defined in the UCC). Borrower will not establish any Subsidiaries (other than Holdco, Intervening Entities and Property Owners) and will not permit Holdco or Property Owners to establish any Subsidiaries, except, in the case of Holdco, the Intervening Entities, and, in the case of the Intervening Entities, the Property Owners. Borrower will not permit any member of the DCTRT Group to liquidate, wind-up or dissolve itself. Borrower shall give Lender at least ten (10) Business Days (or such lesser period as may be required by the Senior Loan Documents, but in no event less than five (5) Business Days) advance notice of the effectiveness of any amendment or modification of Organizational Documents with such notice of such amendment or modification accompanied by a true and complete copy of such amendment or modification, and an certificate of an Authorized Officer certifying that such amendment or modification is a Permitted Organizational Modification. Borrower will not become or permit any other Loan Party to become an Embargoed Person.

7.5 Transactions with Affiliates . Borrower shall not directly or indirectly enter into or permit to exist (or permit Property Owners or Intervening Entities to directly or indirectly enter into or permit to exist) any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any director, officer, employee or Affiliate of any member of the DCTRT Group, except transactions in the ordinary course of and pursuant to the reasonable requirements of the business of the applicable of Borrower, Intervening Owners, and Property Owners and upon fair and reasonable terms which are fully disclosed to Lender and are no less favorable to Borrower than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate, director, officer or employee of Borrower, which do not violate the provisions of any Organizational Documents of such Person and which are not a Senior Loan Default or Senior Loan Event of Default.

 

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7.6 Use of Lender’s Name . Borrower shall not use (or permit any member of the DCTRT Group or any of their respective Affiliates to use) the names of Lender or any of Lender’s Subsidiaries or Affiliates in connection with the development, marketing, leasing, use and operation of the Properties. Borrower shall not disclose or permit (or permit any member of the DCTRT Group or any of their respective Affiliates to use or permit) to disclose any of the terms and conditions of the Loan to any Person except (a) to the extent disclosed in the Loan Documents and the Senior Loan Documents, (b) to the extent such disclosure is required pursuant to the Loan Documents, applicable Legal Requirements or applicable legal process or (c) to the extent Lender consents to such disclosure.

7.7 ERISA . Borrower shall not engage in any transaction which would cause the Obligations or any action taken or to be taken under this Agreement or the other Loan Documents (or the exercise by Lender of any of its rights under the Loan Documents) to be a non-exempt prohibited transaction under ERISA.

7.8 Due on Sale or Encumbrance .

(A) Without Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, none of the Property Owners, Holdco, Intervening Entities, Borrower or any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in the Borrower (at each and every tier or level of ownership) shall, or permit other Persons to, Transfer (whether or not for consideration or of record) all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner, any Intervening Entity, Holdco, Borrower or Collateral or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner or Collateral; (2) in any Property Owner, Holdco, any Intervening Entity or Borrower; or (3) at each and every tier or level of ownership, in Borrower’s, Holdco’s, Intervening Entities’ or Property Owners’ direct or indirect partners, members, shareholders, beneficial or constituent owners including any owners of the direct or indirect owners of any direct or indirect interests in any such constituent owners, including (a) an installment sales agreement for a price to be paid in installments; (b) a sale, assignment or other transfer of, or the grant of a security interest in, Property Owners’ right, title and interest in and to any Leases or any rents other than pursuant to the Senior Loan Documents or as permitted under this Agreement; (c) any direct or indirect voluntary or involuntary sale of any ownership interest in any Property Owner, Holdco, any Intervening Entity, Borrower or other Person directly or indirectly owning any direct or indirect interest in any Property Owner, any Intervening Entity, Holdco or Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by any Property Owner, any Intervening Entity, Holdco or Borrower or any Person owning a direct or indirect interest in any Property Owner, any Intervening Entity, Holdco or Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls any Property Owner, any Intervening Entity, Holdco or Borrower (by operation of law or otherwise) of its direct or indirect controlling interests in Property Owner, Holdco, any Intervening Entity or Borrower. Notwithstanding the foregoing, the following shall not be deemed to be prohibited under this Section 7.8: (i) Transfers of direct or indirect ownership interests in Borrower so long as no Change of Control occurs by virtue of any such Transfers and no new equity invested in Borrower, Property Owner or any Intervening Entity in connection with such Transfer is paid to the original owner of the interest transferred; (ii) a sale

 

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or conveyance of a Property to a Person that is not a member of the DCTRT Group or any of their respective Affiliates (except and to the extent a sale to an Affiliate is a Permitted Affiliate Sale of a Property) so long as such sale or transfer complies with Section 7.8(B); (iii) Liens granted to secure a Senior Loan that is a Permitted Refinancing Loan; (iv) any Transfer, sale, assignment or issuance, from time to time, of (a) any securities in DCTRT, or (b) any operating partnership units in Carveout Guarantor, provided, however, that DCTRT and Carveout Guarantor shall continue to (x) Control directly or indirectly, the Borrower and the day to day operations of each Property on the date of (and, after giving effect to) such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower; (v) any Transfer, sale, assignment, or issuance from time to time, of all or substantially all of the shares of stock or assets in DCTRT or Carveout Guarantor; (vi) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of DCTRT or Carveout Guarantor; (viii) the listing of the securities in DCTRT or Carveout Guarantor on a national securities exchange; (ix) the conversion of DCTRT or Carveout Guarantor, or any subsidiary thereof (excluding Borrower, any Intervening Entity and any Property Owner), into an “open end fund”, or (x) a sale, issuance or Transfer of shares or other securities of DCTRT or any of its affiliates (excluding Borrower, any Intervening Entity and any Property Owner) which are listed on any national securities exchange. Borrower acknowledges that Lender has examined and relied on the experience of the DCTRT Group and their general partners, members, principals and beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan and will continue to rely on such ownership of the Properties and Collateral, Property Owners, Intervening Entities, Holdco and Borrower as a means of maintaining the value of the Collateral as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties and Collateral so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Collateral. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Loan immediately due and payable upon any Default under this Section 7.8.

(B) Notwithstanding Section 7.8(A) to the contrary, a Transfer that is a Permitted Sale of a Property shall not be an Event of Default. A “ Permitted Sale of a Property ” is a Sale of a Property that (a) is an all-cash sale; (b) does not result in and after giving effect to such Sale of a Property there does not exist, a Senior Loan Default or Senior Loan Event of Default; (c) with respect to which the Applicable Minimum Senior Release Price is paid to the Senior Lender and applied to the principal balance of the Senior Loan; (d) funds in an amount equal to the Mezzanine Release Payment Amount are concurrently with the closing of such Sale of a Property paid to Lender (to be applied to the Obligations in accordance with Section 2.7); (e) the buyer in such Permitted Sale is not a member of the DCTRT Group or any of their respective Affiliates unless such Sale of a Property is effected in connection with a financing of the applicable Property and Borrower provides a certificate of Borrower to the effect that such Sale of a Property is to a member of the DCTRT Group (but not a Property Owner, Intervening Entity or Borrower) in order to effect a refinancing (such Sale of a Property, a “ Permitted Affiliate Sale of a Property ”); (f) Borrower shall have given Lender not less than ten (10) Business Days advance notice of such Sale of a Property; (g) Borrower shall, not later than three (3) Business Days prior to the closing of such Sale of a Property, have provided Lender with a true and complete copy of the purchase and sale agreement (or analogous document) (such agreement, the

 

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Sale Agreement” ) and all amendments thereto, the executed closing and disbursement statement for such Sale of a Property, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Net Sales Proceeds of such Sale of a Property and the calculation thereof, such evidence as Lender may reasonably require confirming the amount of the Mezzanine Release Payment Amount, any escrow agreement executed to facilitate such Sale of a Property and irrevocable instructions to such escrowee to disburse the Net Sale Proceeds directly to Lender and a true and complete copy of all documents provided to the Senior Lender in connection with such Sale of a Property, related release of a Lien, prepayment and/or defeasance and (h) concurrently with the closing of the Sale of a Property in question, Borrower shall have provided Lender with a certificate of an Authorized Officer that such Sale of a Property is a Permitted Sale of a Property. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable and actual out-of-pocket attorneys’ fees) in confirming that a Sale of a Property is a Permitted Sale of a Property and the correct amount of the Applicable Minimum Senior Release Price and Net Sales Proceeds. To the extent that any Net Sales Proceeds are deposited into escrow or held back as contemplated in the definition of Net Sales Proceeds, such Net Sales Proceeds shall be paid to Lender concurrently with their release from escrow or holdback if and to the extent they are released to Borrower.

(C) Notwithstanding Section 7.8(A) to the contrary, a Refinancing that is a Permitted Refinancing shall not be an Event of Default. A “ Permitted Refinancing ” is a Refinancing that (a) satisfies or defeases, in full, the Senior Loan being refinanced (and, in each such case, the Liens securing such Senior Loan are released or defeased and, in connection with a defeasance, none of the Borrower, Intervening Entities or Property Owners shall be an obligor of the defeased loan after such defeasance); (b) is documented on documents the terms, provisions and conditions of which are on then market terms; (c) the principal amount of which does not exceed the principal amount of the Senior Loan being refinanced except to the extent such excess is paid, dollar-for-dollar, to Lender to reduce the principal of the Loan; (d) all Net Refinancing Proceeds are concurrently with the closing of such Refinancing paid to Lender; (e) the lender and its participants in such Refinancing is not Borrower, Holdco, DCTRT, a Property Owner or any Affiliate of such Persons; (f) after giving effect to the borrowing of the full amount of the Refinancing in question, the Debt Service Coverage Ratio is not less than the Debt Service Coverage Target Ratio; (g) the Loan is not further subordinated to such Senior Loan; (h) the applicable Senior Lender providing the Refinancing shall have entered into an intercreditor agreement affording the Lender substantially the same rights (and not imposing any additional material obligations or restrictions) as it has under the Intercreditor Agreement (and, if such intercreditor agreement affords such rights and does not impose material additional obligations or restrictions, Lender will execute and deliver such intercreditor agreement); (i) neither Borrower nor Intervening Entities shall have guaranteed any such Senior Loan or incurred any Indebtedness; (j) Borrower shall have given Lender not less than ten (10) Business Days advance notice of such Refinancing; (k) Borrower shall, not later than five (5) Business Days prior to the closing of such Refinancing, have provided Lender with a true and complete copy of the Senior Loan Documents pertaining to such Refinancing, the executed closing and disbursement statement for such Refinancing, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Net Refinancing Proceeds of such Refinancing and the calculation thereof, any escrow agreement executed to facilitate such Sale Refinancing and irrevocable instructions to such escrowee to disburse the Net Refinancing Proceeds directly to Lender; and (l) concurrently with the closing of the Refinancing in question, Borrower shall have

 

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provided Lender with a certificate of an Authorized Officer that such Refinancing is a Permitted Refinancing, which shall, among other things, set forth a calculation the Debt Service Coverage Ratio. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable and actual out-of-pocket attorneys’ fees) in confirming that a Refinancing is a Permitted Refinancing and the correct amount of the Net Refinancing Proceeds. To the extent that any Net Refinancing Proceeds of a Permitted Refinancing are not disbursed at the closing of such Permitted Refinancing, such Net Refinancing Proceeds shall be paid to Lender concurrently with their disbursement (for the avoidance of debt proceeds released following the applicable closing by the applicable lender that are to be applied to costs and expenses of the operation or improvement of a Property shall not be considered Net Refinancing Proceeds for purposes of this sentence).

(D) Borrower will not acquire or permit any Property Owner or Intervening Entity to acquire any real estate other than, in the case of a Property Owner, the Property. Borrower will not invest or permit any Intervening Entity to invest in any other Person except, in the case of Borrower, an investment in Holdco, and, in the case of an Intervening Entity, an investment in another Intervening Entity or a Property Owner. Borrower will not establish or permit a Property Owner or an Intervening Entity to establish any subsidiaries except, in the case of an Intervening Entity, those subsidiaries of an Intervening Entity disclosed pursuant to Section 4.1.

(E) Notwithstanding anything to the contrary contained herein, at any time on or prior to the end of the Resolution Expiration Period, Holdco may, but shall not be obligated to (except in the event Resolution occurs prior to the end of the Resolution Expiration Period and the Earn-Out Amendment or the Earn-Out Advance closes and funds simultaneously with the Northrop Transfer (which Borrower shall use its good faith efforts to cause to occur), in which case Borrower shall use its good faith efforts to cause Holdco to), acquire all of the interests in the Person that is indirectly wholly-owned by a Companion Borrower and owns the Northrop VA Property (the “ Northrop Transfer ”) if such acquisition is permitted pursuant to the Senior Loan Documents and the Organizational Documents. Borrower will not later than the date of the Northrop Transfer deliver to Lender true and complete copies of (i) all documents provided to Senior Lender in connection with the Northrop Transfer, (ii) the transfer documents showing the transfer in question, (iii) the Organizational Documents of the Property Owner that owns the Northrop VA Property and of any Intervening Entity not previously provided to Lender and (vi) a certificate of an Authorized Officer that such transfer complies with this Section 7.8(E). Borrower will, at Lender’s request and, at Lender’s sole cost and expense, reasonably cooperate with Lender to cause the Title Company to issue an endorsement to the Title Policy showing the addition of the Northrop VA Property as a Property or, at Lender’s election, a mezzanine endorsement to the owners policy insuring the Property Owner of the Northrup VA Property. Upon the effectiveness of a Northrop Transfer, such Person shall be deemed a “Property Owner” hereunder and the Northrop VA Property shall be deemed a “Property” hereunder. Notwithstanding anything to the contrary contained herein, in the event the Northrop Transfer has occurred, a Person that is wholly-owned by Holdco (a “Substitute Owner” ) may, after the third (3 rd ) anniversary of the Closing Date, acquire substitute real estate ( “Substitute Property” ) concurrently with a Sale of the Property of the Northrop VA Property pursuant to the lease to Northrop as in effect on the Closing Date, provided such substitution shall (i) have occurred following satisfaction of all conditions to such substitution set forth in the Senior Loan Documents, (ii) Lender shall have approved such substitution upon such terms and conditions as Lender may reasonably require, and (iii) any funds received in connection with the sale of the Northrop VA Property shall be utilized in their entirety to acquire to the Substitute Property.

 

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7.9 Payments; Distributions . Borrower shall not pay any distributions, dividends or other payments or return any capital to any of its respective partners, members, owners or shareholders or any other Affiliate or make any distribution of assets, rights, options, obligations or securities to any of its respective partners, members, shareholders or owners or any other Affiliate (individually, or collectively, a “ Distribution ”) unless (a) on the date of the proposed Distribution, and after giving effect to the subsequent Distribution, no monetary Default, material non-monetary Default, Event of Default, monetary Senior Loan Default, material non-monetary Senior Loan Default or Senior Loan Event of Default exists; and (b) Borrower is not “insolvent” (as defined in the Bankruptcy Code) and will not be rendered insolvent by virtue of such Distribution.

7.10 Approval Matters . Without waiving any Event of Default, if an Event of Default exists, Borrower will not take, or permit to be taken, any Approval Matters without Lender’s consent.

SECTION 8

CASUALTY AND CONDEMNATION

After the happening of any casualty or condemnation to any Property or any part thereof, Borrower shall give prompt notice thereof to Lender. All compensation, proceeds, damages, claims, insurance recoveries, rights of action and payments which a Property Owner may receive or to which it may become entitled with respect to any Property or any part thereof as a result of any casualty or condemnation (the “ Proceeds ”), shall be paid over in and applied in accordance with the Senior Loan Documents. To the extent a Property Owner receives Proceeds that are not applied to the costs of restoration and/or repair, Borrower will, subject to the terms and provisions of the Senior Loan Documents, cause such Proceeds to be disbursed directly to Lender, and Lender shall apply any such Proceeds, to the payment or prepayment of the Obligations. Any application of the Proceeds or any portion thereof to the Obligations shall not be construed to cure or waive any Default or Event of Default or invalidate any act done pursuant to any such Default or Event of Default. To the extent Property Owner utilizes Proceeds for restoration, Borrower shall cause the applicable Property Owner to satisfy the applicable conditions for disbursement set forth in the Senior Loan Agreement and will comply with the applicable requirements regarding restoration set forth in the Senior Loan Agreement (in each instance, unless waived) and keep Lender reasonably apprised of the status of such restoration upon Lender’s request. Borrower shall cause Property Owner to satisfy all conditions required to utilize Proceeds for restoration pursuant to the Senior Loan Documents (in each instance, unless waived).

 

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SECTION 9

DEFAULT, RIGHTS AND REMEDIES

9.1 Event of Default . “ Event of Default ” means the occurrence or existence of any one or more of the following:

(A) Payment . Failure of Borrower to pay (i) on the Maturity Date, the outstanding principal of, accrued interest in, and other Indebtedness owing pursuant to the Agreement, the Notes and the other Loan Documents; (ii) within five (5) days after the due date, any installment of principal or interest due under the Loan Documents; or (iii) within five (5) days after written notice from Lender, any other amount due under the other Loan Documents.

(B) Senior Loan . The occurrence of a Senior Loan Event of Default.

(C) Breach of Representation and Warranty . Any representation, warranty, certification or other written statement made by a Loan Party in any Loan Document or in any certificate given to Lender by Borrower in writing pursuant or in connection with any Loan Document (other than occurrences described in other provisions of this Section 9.1 for which a different grace or cure period is specified or which constitute immediate Events of Default) is false in any material respect on the date made which remains uncured for five (5) Business Days after notice, but no grace or curative period will apply if the representation, warranty, certification or other statement was known by a Loan Party to be false when made or deemed made.

(D) Other Defaults Under Loan Documents . A Default by Borrower shall occur in the performance of or compliance with any term contained in this Agreement or the other Loan Documents and such default is not remedied or waived within sixty (60) days after the giving by Borrower of notice from Lender of such default (other than occurrences described in other provisions of this Section 9.1 for which a different grace or cure period is specified or which constitute immediate Events of Default); provided , however , that if such default cannot be remedied with reasonably diligent effort within a period of sixty (60) days, but is susceptible to cure, such longer period as Borrower may reasonably need to remedy such default, if Borrower is proceeding with diligent effort to remedy such default. The rights to notice and cure periods granted herein shall not be cumulative with any other rights to notice or a cure period in any other Loan Document and the giving of notice or a cure period pursuant to this section shall satisfy any and all obligations of Lender to grant any such notice or cure period pursuant to any of the Loan Documents.

(E) Involuntary Bankruptcy; Appointment of Receiver, etc. (1) A court enters a decree or order for relief with respect to any member of the DCTRT Group in an involuntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law; or (2) the continuance of any of the following events for one hundred twenty (120) days unless dismissed, bonded or discharged: (a) an involuntary case is commenced against any member of the DCTRT Group under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or (b) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any member of the DCTRT Group or over all or a substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed for any member of the DCTRT Group for all or a substantial part of the property of any member of the DTRT Group; or

 

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(F) Voluntary Bankruptcy; Appointment of Receiver, etc. (1) An order for relief is entered with respect to any member of the DCTRT Group or any member of the DCTRT Group commences a voluntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or (2) any member of the DCTRT Group makes any assignment for the benefit of creditors; or (3) partners, directors, shareholders, manager or members in any member of the DCTRT Group adopts any resolution or otherwise authorizes action to approve any of the actions referred to in this Section 9.1(F); or

(G) Governmental Liens . Any lien, levy or assessment is filed or recorded with respect to or otherwise imposed upon all or any part of the Collateral by the United States or any department or instrumentality thereof or by any state, county, municipality or other governmental agency and such lien, levy or assessment is not stayed, vacated, paid, discharged or insured or bonded over within sixty (60) days;

(H) Judgment and Attachments . Any money judgment, writ or warrant of attachment, or similar process (other than those described in Section 9.1(G)) that has, or, might reasonably be expected to have, a Material Adverse Effect (not adequately covered by insurance as to which the insurance company has acknowledged coverage) is entered or filed against any member of the DCTRT Group and remains undischarged, unvacated, unbonded, uninsured or unstayed for a period of sixty (60) days or in any event later than five (5) days prior to the date of any proposed sale thereunder;

(I) Dissolution . Any order, judgment or decree is entered against any member of the DCTRT Group decreeing the dissolution or split up of any member of the DCTRT Group and such order remains undischarged or unstayed for a period in excess of thirty (30) days; or

(J) Injunction . Either (i) a member of the DCTRT Group is enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business that has, or, might reasonably be expected to have, a Material Adverse Effect and such order continues for more than sixty (60) days; or (ii) any order or decree is entered by any court of competent jurisdiction directly or indirectly enjoining or prohibiting Lender or any member of the DCTRT Group from performing any of their obligations under this Agreement or any of the other Loan Documents or any of the Senior Loan Documents; or

(K) Invalidity of Loan Documents . Any of the Loan Documents for any reason, other than a partial or full release in accordance with the terms of the Loan Documents, ceases to be in full force and effect or is declared to be null and void by a court of competent jurisdiction, or any Loan Party denies that it has any further liability under any Loan Documents to which it is party, or gives notice to such effect; or

(L) Event of Default . The occurrence of an Event of Default specified elsewhere in this Agreement or in any of the other Loan Documents; or

 

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(M) Transfer . The occurrence of a Transfer in violation of Section 7.8; or

(N) Fraud . The occurrence of any fraud with respect to the Loan or the Loan Documents by, or as directed by, any member of the DCTRT Group or any of their respective Affiliates; or

(O) Indebtedness . If Borrower, its members, Holdco, Intervening Entities or Property Owners guarantees the obligations of a Person or lends money to any Person; and

(P) Special Purpose Entity . If Borrower ceases to be a Special Purpose Bankruptcy Remote Entity, the Organizational Documents of a Property Owner or Intervening Entity cease to include SPE Provisions or a Property Owner or Intervening Entity ceases to comply with the SPE Provisions in its Organizational Documents.

9.2 Acceleration and Remedies . Upon the occurrence of any Event of Default specified in Sections 9.1(E) and 9.1(F), payment of all Obligations shall be accelerated without notice, presentment, demand, protest or notice of protest and shall be immediately due and payable and, in addition, Lender may in addition to any other rights and remedies available to Lender at law or in equity or under any other Loan Documents, exercise one of more of the following rights and remedies as it, in its sole discretion, deems necessary or advisable. Upon the occurrence of any Event of Default (other than Events of Default specified in Sections 9.1(E) and 9.1(F)), Lender, in addition to any other rights or remedies available to Lender at law or in equity, or under any of the other Loan Documents, may exercise any one or more of the following rights and remedies as it, in its sole discretion, deems necessary or desirable:

(a) Acceleration . Declare immediately due and payable, without further notice, protest, presentment, notice of protest or demand, all Obligations including all monies advanced under this Agreement, the Notes, the Mortgage and/or any of the Loan Documents which are then unpaid, together with all interest then accrued thereon and all other amounts then owing (including any Default Interest, or prepayment premium owed as a result of such acceleration). If payment of the Obligations is accelerated, Lender may, in its sole discretion, exercise all rights and remedies hereunder and under the Notes, the Mortgage and/or any of the other Loan Documents at law, in equity or otherwise.

(b) Foreclosure . If a Foreclosure Event has occurred, exercise Lender’s rights under Section 9 of the Pledge Agreement.

(c) No Further Obligations . Terminate Lender’s obligations under this Agreement.

(d) Injunctive Relief . Institute appropriate proceedings for injunctive relief (including specific performance of the obligations of Borrower).

(e) Approvals . Have the right to consent to any Approval Matters.

(f) Other . Exercise all rights under law or equity including institution of appropriate legal proceedings and all rights exercisable under any Loan Documents after the occurrence of an Event of Default.

 

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9.3 Remedies Cumulative; Waivers; Reasonable Charges . All of the remedies given to Lender in the Loan Documents or otherwise available at law or in equity to Lender shall be cumulative and may be exercised separately, successively or concurrently. Failure to exercise any one of the remedies herein provided shall not constitute a waiver thereof by Lender, nor shall the use of any such remedies prevent the subsequent or concurrent resort to any other remedy or remedies vested in Lender by the Loan Documents or at law or in equity. To be effective, any waiver by Lender must be in writing and such waiver shall be limited in its effect to the condition or default specified therein, and no such waiver shall extend to any subsequent condition or default. It is agreed that (i) the actual costs and damages that Lender would suffer by reason of an Event of Default (exclusive of the attorneys’ fees and other costs incurred in connection with enforcement of Lender’s rights under the Loan Documents) or a prepayment would be difficult and needlessly expensive to calculate and establish, and (ii) the amounts of the Default Rate and the Late Charge are reasonable, taking into consideration the circumstances known to the parties at this time, and (iii) the Default Rate, the Late Charges and Lender’s reasonable attorneys’ fees and other costs and expenses incurred in connection with enforcement of Lender’s rights under the Loan Documents shall be due and payable upon Lender’s demand, and (iv) the Default Rate, Late Charges and the obligation to pay Lender’s reasonable attorneys’ fees and other enforcement costs do not, individually or collectively, constitute a penalty.

9.4 Put Agreements . Lender acknowledges and agrees that a default under either Put Agreement shall not constitute a Default or an Event of Default under this Agreement or any of the other Loan Documents nor entitle Lender to exercise any remedies hereunder or thereunder.

SECTION 10

SECONDARY MARKET TRANSACTION

10.1 Secondary Market Transaction . Borrower agrees that, subject to the terms of this Section 10, Lender has the absolute right to securitize, syndicate, grant participations in, or otherwise Transfer all or any portion of the Loan (each such transaction, a “ Securitization ”). Lender may determine to Transfer some or all of the Loan or retain title to some or all of the Loan as part of a Securitization. Borrower further agrees that Lender may delegate any or all of Lender’s rights, powers and privileges to a servicer (“ Servicer ”) and Borrower shall, upon written notice from Lender, recognize the Servicer as the agent of Lender. Borrower shall, upon request from Lender, from time to time, reasonably cooperate, and Borrower shall cause any other Loan Party to reasonably cooperate in all reasonable respects in connection with a Securitization at Lender’s sole cost and expense. Such cooperation may, in Lender’s discretion, include documentation changes, changes in Organizational Documents of the Borrower (and, if such consent is required, only with the Senior Lender’s consent, the Property Owners, and Intervening Entities), changes in Payment Dates, Interest Periods, site inspections, preparation and delivery of financial information or other diligence requested by Lender provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or any Loan Party under the Loan Documents, (2) increase any costs or expenses payable by Borrower or any Loan Party under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. Such cooperation may include, in Lender’s discretion, execution of one or more promissory notes and the creation of Liens securing such notes of differing priority so long as the principal amount, weighted average interest rate, payment terms and other monetary terms of the Loan do not, in the aggregate

 

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change. Borrower will not be required to incur more than de minimis expenses or costs pursuant to this Section 10.1, except to the extent Borrower is otherwise obligated under the Loan Documents to pay such costs and expenses. Borrower will, upon request from Lender, in connection with a Securitization, enter into such acknowledgments and confirmations of the applicable assignments as Lender may reasonably request. Borrower shall, subject to the terms and provisions of this Section 10.1, use reasonable efforts to satisfy the market standards which Lender determines are reasonably required in the marketplace in connection with a Securitization. Borrower will not, pursuant to any of the provisions of this Section 10.1, incur, suffer or accept (except to a de minimis extent) (i) any lesser rights or greater obligations as are currently set forth in the Loan Documents or Borrower’s Organizational Documents or (ii) any personal liability other than as set forth in the Loan Documents. In no event will there be more than three (3) Lenders and/or participants at any one time in the aggregate as to both the Loan and the Companion Loan; provided, however, the foregoing shall not prohibit Lender from pledging, assigning or transferring its right, title and interest in the Loan to any trustee or agent for the benefit of one or more persons in connection with any bond financing, term financing or revolving credit financing (which financings may also be structured as repurchase agreements) provided to (or guaranteed, in whole or in part by) Lender (or any of Lender’s subsidiaries) by one or more lenders (or, if a repurchase facility, buyers) with a committed principal amount of at least $500,000,000.00 at origination of such financing; and provided, further, from and after the Put Acquisition pursuant to the Tranche B Put Agreement, the limitations on the number of Lenders and participants shall apply only to the holders of (and participants in) the Tranche A Promissory Note. In the event that DCTRT (or its nominee) shall acquire the Tranche B Promissory Note, the Tranche B Promissory Note shall not thereafter be sold, pledged, Transferred or otherwise thereafter made the subject of a Securitization without the prior written consent of the holder(s) of the Tranche A Promissory Note and the Administrative Agent; provided, however, the Tranche B Promissory Note may be Transferred by DCTRT (or its nominee) to a Qualified Transferee (as defined in the Intercreditor Agreement) without the prior written consent of the holder(s) of the Tranche A Promissory Note and the Administrative Agent, so long as (a) such Transfer is permitted under the Intercreditor Agreement and does not otherwise violate the Intercreditor Agreement or the Senior Loan Documents and is effected in compliance with the Intercreditor Agreement, (b) the holder(s) of the Tranche A Promissory Note and the Administrative Agent are provided with (i) at least ten (10) days prior written notice of such Transfer, and (ii) on or before such Transfer, a certificate from an executive officer of the assignee that (x) the assignee is a Qualified Transferee, (y) the assignee agrees to be bound by the Loan Documents and the Intercreditor Agreement, and (z) the address and wiring instructions to where any notices and any payments to be provided to assignee hereunder shall be delivered to Administrative Agent and Requisite Lender. From and after the Put Acquisition, the provisions of Section 12 of this Agreement shall apply.

SECTION 11

MISCELLANEOUS

11.1 Expenses and Attorneys’ Fees . Borrower agrees to promptly pay all reasonable and actual third party fees, costs and expenses (including reasonable attorneys’ fees, court costs, cost of appeal and the reasonable fees, costs and expenses of other professionals retained by Lender) incurred by Lender and Administrative Agent in connection with the following, and all such fees, costs and expenses shall be part of the Obligations, payable on demand: (A) the documentation

 

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and closing of the financing arrangements evidenced by the Loan Documents and the Senior Loan Documents; (B) the giving or withholding of any consents, approval or permissions, disbursements of the Loan and in connection with any amendments, modifications and waivers relating to the Loan Documents and/or Senior Loan Documents requested by Borrower; (C) the review, documentation, negotiation and closing of any subordination or intercreditor agreements; (D) enforcement of this Agreement or the other Loan Documents, the collection of any payments due from any Loan Party under the Loan Documents or any refinancing or restructuring of the credit arrangements provided under the Loan Document, whether in the nature of a “workout’ or in connection with any insolvency or bankruptcy proceedings or otherwise; and (E) curing Senior Loan Defaults and Senior Loan Events of Default and payments by Lender to Senior Lender shall be deemed additional principal advances of the Loan bearing interest at the Default Rate and payable upon demand from Lender to Borrower. To the extent Lender or Administrative Agent pays all of the fees, costs and expenses described in this Section 11.1, Borrower shall reimburse Lender upon demand for such payments by Lender and such payments by Lender shall bear interest at the Default Rate from and after demand from Lender or Administrative Agent.

11.2 Certain Lender Matters . Lender may, in accordance with Lender’ customary practices, destroy or otherwise dispose of all documents, schedules, invoices or other papers, delivered by any member of the DCTRT Group to Lender unless Borrower requests, at the time of delivery, in writing, that same be returned. Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender, to grant Lender any interest in the Properties or to create any interest in the Collateral other than that of secured party. No provision in this Agreement or in any of the other Loan Documents and no course of dealing between the parties shall be deemed to create any fiduciary duty by Lender to Borrower or any other Person. All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Lender shall have the right to act exclusively in the interest of Lender and shall have no duty of loyalty, duty of care or any other duty to any member of the DCTRT Group or any other Person. By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to the Loan Documents, Lender shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or representation with respect hereto or thereto by Lender. Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender or their respective attorneys, advisors, accountants, officers, representatives, directors, employees, partners, shareholders, trustees, members or managers. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

 

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NEITHER BORROWER NOR LENDER SHALL HAVE NO LIABILITY HEREUNDER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Borrower, Property Owner or DCTRT, or their respective creditors or property, Lender, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Lender allowed in such proceedings for the entire secured Obligations at the date of the institution of such proceedings and for any additional amount which may become due and payable by Borrower after such date. Lender shall have the right from time to time to designate, appoint and replace one or more servicers and to allow servicer to exercise any and all rights of Lender under the Loan Documents. All documents and other matters required by any of the provisions of this Agreement to be submitted or provided to Lender shall be in form and substance satisfactory to Lender. Borrower shall not be entitled to (and does hereby waive any and all rights to receive) any notices of any nature whatsoever from Lender except with respect to matters for which the Loan Documents expressly provide for the giving of notice by Lender to Borrower. In any action or proceeding brought by Borrower against Lender claiming or based upon an allegation that Lender unreasonably withheld its consent to or approval of a proposed act by Borrower which requires Lender’s consent hereunder, Borrower’s sole and exclusive remedy in said action or proceeding shall be injunctive relief or specific performance requiring Lender to grant such consent or approval.

11.3 Indemnity . In addition to the payment of expenses pursuant to Section 11.1 and the indemnification obligations set forth in other portions of this Agreement or the other Loan Documents, Borrower agrees to indemnify, pay, defend and hold Lender, its officers, directors, members, managers, partners, shareholders, participants, beneficiaries, trustees, employees, agents (including Administrative Agent), representatives, successors and assigns, any subsequent holder of each Note, any trustee, fiscal agent, servicer, underwriter and placement agent, (collectively, the “ Indemnitees ”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, causes of action, suits, claims, tax liabilities, broker’s or finders fees, costs, expenses and disbursements of any kind or nature whatsoever excluding indirect, consequential and punitive damages (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, based upon any third party claims against such Indemnitees in any manner related to or arises out of (A) any breach by any Loan Party of any representation, warranty, covenant, or other agreement contained in any of the Loan Documents, (B) any Senior Loan Default or Senior Loan Event of Default, or (C) the actual or threatened presence, release, disposal, spill, escape, leakage, transportation, migration, seepage, discharge, removal, or cleanup of any Hazardous Material located on, about, within, under, affecting, from or onto any Property or any violation of any applicable Environmental Law by any member of the DCTRT Group (or their respective Affiliates) or any Property (the foregoing liabilities herein collectively referred to as the “ Indemnified Liabilities ”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined in a final order by a court of competent jurisdiction or arising with respect to Hazardous Materials determined in a final order by a court of competent jurisdiction to have been located on a Property prior to the Closing Date except to the

 

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extent resulting or arising from actions or negligent omissions of a Property Owner or its Affiliates on or after the Closing Date. Borrower shall be relieved of its obligation under clause (C) of this Section 11.3 with respect to Hazardous Materials first introduced to the Land and Improvements after either (1) foreclosure pursuant to the Pledge Agreement or (2) the delivery by Borrower to, and acceptance by, Lender or its designee of an assignment in lieu of foreclosure with respect to the Collateral. To the extent that the undertaking to indemnify, pay, defend and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. If any such action or other proceeding shall be brought against Lender, upon written notice from Borrower to Lender (given reasonably promptly following Lender’s notice to Borrower of such action or proceeding), Borrower shall be entitled to assume the defense thereof, at Borrower’s expense, with counsel reasonably acceptable to Lender; provided, however, Lender may, at its own expense, retain separate counsel to participate in such defense, but such participation shall not be deemed to give Lender a right to control such defense, which right Borrower expressly retains. Notwithstanding the foregoing, each Indemnitee shall, following notice to and consultation with Borrower, have the right to employ separate counsel at Borrower’s expense if, in the reasonable opinion of legal counsel, a conflict or potential conflict exists between the Indemnitees and Borrower that would make such separate representation advisable. Borrower shall have no obligation to indemnify an Indemnitee for damage or loss resulting from such Person’s gross negligence or willful misconduct.

11.4 Amendments and Waivers . Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement, the Notes or any other Loan Document, or consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by Lender (and, with respect to any amendment or modification, unless also signed by Borrower). Each amendment, modification, termination or waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Borrower in any case shall entitle Borrower, or any other Person to any other or further notice or demand in similar or other circumstances. To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s members and others with interests in Borrower, and of the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Loan Documents, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Collateral for the collection of the obligations without any prior or different resort for collection or of the right of Lender to the payment of the obligations owing Lender on account of the Loan Documents out of the net proceeds of the Collateral in preference to every other claimant whatsoever. In addition, Borrower, for itself and its successors and assigns, waives, in the event of foreclosure pursuant to the Pledge Agreement, any equitable right otherwise available to Borrower which would require the separate sale of any of any portion of the Collateral or require Lender to exhaust its remedies against any portion of the Collateral or any combination of the Collateral before proceeding against any other portion; and further in the event of such foreclosure, Borrower expressly consents to and authorizes, at the option of Lender, the foreclosure and sale either separately of

 

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all or any portion of the Collateral. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents. No failure or delay on the part of Lender or any holder of any Note in the exercise of any power, right or privilege hereunder or under the Notes or any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing under this Agreement, the Notes and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. Lender shall not be under any obligation to marshal any assets in favor of any Person or against or in payment of any or all of the Obligations. To the extent that any Person makes a payment or payments to Lender, or Lender enforces its remedies or exercise its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and all Liens, if any, rights and remedies therefore, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred. Borrower agrees (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive Borrower from paying all or any portion of the principal of, premium, if any, or interest on Loan contemplated herein or in any of the other Loan Documents or which may affect the covenants or the performance of this Agreement; and Borrower (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the holders, but will suffer and permit the execution of every such power as though no such law had been enacted.

11.5 Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied (with request for confirmation) or sent by overnight courier service or United States registered mail return receipt requested, postage prepaid. Any notice so given shall be deemed effective upon delivery or on refusal or failure of delivery during normal business hours. Notices shall be addressed to the parties at the addresses specified on Schedule 11.5 or to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section 11.5.

11.6 Survival of Warranties and Certain Agreements . All agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement, the making of the Loan hereunder and the execution and delivery of the Notes. Notwithstanding anything in this Agreement or implied by law to the contrary, the provisions of Sections 2.6, 11.1, 11.2, 11.3 and 11.12 shall survive the payment of the Loan, satisfaction of the Notes and the termination of this Agreement. Subject to this Section 11.6, all other representations, warranties and agreements of Borrower and Lender set forth in this Agreement shall terminate upon indefeasible payment in full of the Loan and the termination of this Agreement.

 

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11.7 Miscellaneous . Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. All covenants and agreements hereunder shall be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. The invalidity, illegality or unenforceability in any jurisdiction of any provision in or obligation under this Agreement, the Notes or other Loan Documents shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Agreement, the Notes or other Loan Documents or of such provision or obligation in any other jurisdiction. This Agreement is made for the sole benefit of Borrower and Lender, and no other Person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder. This Agreement, the Notes, and the other Loan Documents referred to herein embody the final, entire agreement among the parties hereto and supersede any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties hereto. Borrower and Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by Borrower and Lender. If any term, condition or provision of this Agreement shall be inconsistent with any term, condition or provision of any other Loan Document, this Agreement shall control. This Agreement and any amendments, waivers, consents, or supplements may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which counterparts together shall constitute but one and the same instrument. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto.

11.8 APPLICABLE LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

11.9 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns except that Borrower may not assign its rights or obligations hereunder or under any of the other Loan Documents without the written consent of Lender. Any assignee of Lender’s interest in the Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to the Loan Documents which Borrower may otherwise have against any assignor of the Loan Documents.

11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS . BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S ELECTION, ALL ACTIONS

 

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OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE NOTE, SUCH OTHER LOAN DOCUMENTS OR SUCH OBLIGATION. BORROWER DESIGNATES AND APPOINTS NATIONAL REGISTERED AGENTS, INC. AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY BORROWER WITH LENDER’S APPROVAL WHICH IRREVOCABLY AGREE IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO BORROWER AT ITS ADDRESS PROVIDED IN SUBSECTION 11.5 EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BORROWER AS ITS AGENT FOR SERVICE OF PROCESS REFUSES TO ACCEPT SERVICE OF PROCESS, BORROWER HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.

11.11 WAIVER OF JURY TRIAL . BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. BORROWER AND LENDER ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF BORROWER OR LENDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND LENDER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER

 

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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

11.12 Publicity . Lender (and Lender’s Affiliates) may, subject to the applicable limitations on distribution of Confidential Information set forth in this Section 11.12, and Borrower does hereby authorize (and shall cause Property Owner, any other Loan Party and Holdco to authorize) Lender (and its Affiliates) to, refer, in its sole discretion, to the Loan in tombstone advertisements and reports to investors, which references, may include use of photographs, drawings and other depictions, images of the Land and Improvements, a description of the Loan, use of Property Owner’s, Holdco’s and Borrower’s names, and the address of the Properties. Lender hereby agrees that, without the prior written consent of Borrower, any written information relating to Property Owner or Borrower or any member of the DCTRT Group which is provided to Lender in connection with the Loan (including data and information provided pursuant to Section 5.1(F)) which is either confidential, proprietary, or otherwise not generally available to the public (but excluding information Lender has obtained independently from third-party sources without Lender’s knowledge that the source has violated any fiduciary or other duty not to disclose such information) and which has been expressly designated as such by notice to Lender from Borrower (the “ Confidential Information ”), will be kept confidential by Lender, using substantially the same standard of care in safeguarding the Confidential Information as Lender employs in protecting its own proprietary information which Lender desires not to disseminate or publish. Notwithstanding the foregoing, Confidential Information may be disseminated (a) pursuant to the requirements of applicable law; (b) pursuant to judicial process, administrative agency process or order of Governmental Authority; (c) in connection with litigation, arbitration proceedings or administrative proceedings before or by any Governmental Authority or stock exchange; (d) to Lender’s attorneys, accountants, advisors and actual or prospective financing sources who will be instructed to comply with this Section 11.12; (e) to actual or prospective trustees, assignees, pledgees, participants, agents, servicers, or securities holders in a Securitization; and (f) pursuant to the requirements or rules of a stock exchange or stock trading system on which the Securities of Lender or its Affiliates may be listed or traded. For purposes of this Section 11.12, Confidential Information will not be deemed to include the Loan amount and the other terms, conditions and provisions of the Loan Documents, the street address and common name, if any, of the Land and Improvements, the names of any Loan Party and any other member of the DCTRT Group and photographs or other depictions of the Properties. Borrower represents, warrants and covenants that each Property Owner has agreed to the foregoing. Borrower will not issue or permit to be issued any press release by Borrower or its Affiliates with respect to the Loan without Lender’s consent.

11.13 Performance by Lender/Attorney-in-Fact . In the event that Borrower shall at any time fail to duly and punctually pay, perform, observe or comply with any of its covenants and agreements hereunder or under the other Loan Documents or if any Event of Default hereunder shall exist or if any Senior Loan Default or Senior Loan Event of Default shall exist then Lender may (but shall in no event be required to) make any such payment or perform any such term, provision, condition, covenant or agreement or cure any such Event of Default Senior Loan Default or Senior Loan Event of Default. Lender shall not take action under this Section 11.13

 

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prior to the occurrence of an Event of Default, Senior Loan Default or Senior Loan Event of Default unless in Lender’s good faith judgment reasonably exercised, such action is necessary or appropriate in order to preserve the value of the Collateral or a Property, to protect Persons or property, or Borrower, Holdco or Property Owners have abandoned the Collateral, the membership interests in Property Owners, any Property or any portion thereof, as the case may be. Lender shall not be obligated to continue any such action having commenced the same and may cease the same without notice to Borrower. Any amounts expended by Lender in connection with such action shall constitute additional advances hereunder, the payment of which is additional Indebtedness, secured by the Loan Documents and shall become due and payable upon demand by Lender, with interest at the Default Rate from the date of disbursement thereof until fully paid. No further direction or authorization from Borrower shall be necessary for such disbursements. The execution of this Agreement by Borrower shall and hereby does constitute an irrevocable direction and authorization to Lender to so disburse such funds. Borrower hereby irrevocably appoints Lender, as its attorney-in-fact, coupled with an interest, with full authority in the place and stead of Borrower and in the name of Borrower or otherwise (A) during the existence of an Event of Default, Senior Loan Default or Senior Loan Event of Default in the discretion of Lender, to take any action and to execute any instrument which Lender may deem necessary to accomplish the purpose of this Agreement or any other Loan Document, including to execute and/or file, without the signature of Borrower any Uniform Commercial Code financing statements, continuation statements, or other filing, and any amendment thereof, relating to the Loan Account Collateral; (B) to give notice to any third parties which may be required to perfect Lender’s security interest in the Collateral; and (C) following the occurrence of a Foreclosure Event, to register, purchase, sell, assign, transfer, pledge or take any other action with respect to any Collateral in accordance with this Agreement or any Loan Document.

11.14 Brokerage Claims . Borrower shall protect, defend, indemnify and hold Lender harmless from and against all loss, cost, liability and expense incurred as a result of any claim for a broker’s or finder’s fee against Lender or any Person, in connection with the transaction herein contemplated, provided such claim is made by or arises through or under Borrower or is based in whole or in part upon alleged acts or omissions of Borrower. Lender shall protect, defend, indemnify and hold Borrower harmless from and against all loss, cost, liability and expense incurred as a result of any claim for a broker’s or finder’s fee against Borrower or any other Person in connection with the transaction herein contemplated, provided such claim is made by or arises through or under Lender or is based in whole or in part upon alleged acts or omissions of Lender.

11.15 Agreement . THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER SHALL BE DETERMINED SOLELY FROM THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND ANY PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN LENDER AND BORROWER CONCERNING THE SUBJECT MATTER HEREOF AND OF THE OTHER LOAN DOCUMENTS ARE SUPERSEDED BY AND MERGED INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE VARIED BY ANY ORAL AGREEMENTS OR DISCUSSIONS THAT OCCUR BEFORE, CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS LOAN AGREEMENT OR THE LOAN DOCUMENTS. THIS WRITTEN AGREEMENT

 

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AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

SECTION 12

Administrative Agent and Put Acquisition

12.1 Effectiveness of Section 12 . Upon the acquisition (such acquisition, a “ Put Acquisition ”) of the Tranche B Promissory Note by DCTRT (or its nominee) pursuant to a Put Agreement, the terms and provisions of this Section 12 shall take effect.

12.2 Administrative Agent . Effective upon the Put Acquisition, the Administrative Agent shall have, on behalf of the Lender, all of the rights, powers, and authority that the Lender has under the terms and conditions of this Agreement and the other Loan Documents. Borrower hereby agrees (a) to reasonably cooperate with the Administrative Agent in exercising the rights, duties, and obligations set forth in this Agreement and in the other Loan Documents; (b) that all accounts, letters of credit, insurance endorsements, and any other instrument, account, or document originated or issued pursuant to the terms and conditions of this Agreement and/or the other Loan Documents shall be in favor of the Administrative Agent, on behalf of the Lender or its successors and assigns; (c) that the Administrative Agent, on behalf of the Lender, has the right to exercise any and all of the rights, duties, obligations, waivers, and other powers that are otherwise exercisable by, or in favor of, Lender; and (d) all monies and or other deliverables from Borrower or its Affiliates to Lender shall be delivered to the Administrative Agent on behalf of Lender or its successors and assigns.

12.3 Appointment and Authorization . The holder of the Tranche A Promissory Note shall have the exclusive right to appoint the Administrative Agent and iStar Financial Inc. is hereby irrevocably appointed and authorized to be the initial Administrative Agent (the “ Administrative Agent ”), which Administrative Agent is, from and after the Put Acquisition, authorized to take such action as contractual representative on the Lender’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. From and after the Put Acquisition, the holder of the Tranche A Promissory Note shall be the “Requisite Lender” and any and all action taken by the Requisite Lender in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lender of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any of the Lenders or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”, “Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The

 

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Administrative Agent shall deliver to each Lender (other than the holder of the Tranche B Promissory Note following the Put Acquisition), promptly upon receipt thereof by Administrative Agent, copies of each of the financial statements, certificates, notices and other documents delivered to Administrative Agent pursuant to the terms hereof that the Borrower is not otherwise required to deliver directly to the Lender. The Administrative Agent will furnish to any of the Lenders (other than the holder of the Tranche B Promissory Note following the Put Acquisition), upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement of the Loan Documents or collection of the Obligations), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lender, and such instructions shall be binding upon each of the Lenders and all holders of any of the Obligations; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or applicable law. Not in limitation of the foregoing, the Administrative Agent may exercise or may refrain from exercising any right or remedy it or the Lender may have under any Loan Document upon the occurrence of a Default or Event of Default unless the Requisite Lender have directed the Administrative Agent otherwise and unless and until Administrative Agent shall have received directions from the Requisite Lender, Administrative Agent may take such action, or refrain from taking such action, with respect to any Default or Event of Default as Administrative Agent shall determine in its sole discretion. Furthermore, and without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite Lender pursuant to the terms hereof.

12.4 iStar Financial Inc. as Lender . iStar Financial Inc., as a Lender, shall have the same rights and powers under this Agreement and any other Loan Document as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include iStar Financial Inc. in each case in its individual capacity. iStar Financial Inc. and its affiliates may invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with the Borrower or any Affiliate thereof as if it were any other Person and without any duty to account therefor to the other Lenders. Further, the Administrative Agent and any affiliate may accept fees and other consideration from the Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other Lenders. The Lenders acknowledge that, pursuant to such activities, iStar Financial Inc. or its affiliates may receive information regarding the Borrower and the Borrower’s Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them.

 

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12.5 Collateral Matters; Protective Advances .

(A) Each Lender hereby authorizes the Administrative Agent, without the necessity of any notice to or further consent from any Lender, from time to time prior to a Default, to take any action with respect to the Collateral or Loan Documents which may be necessary to perfect and maintain perfected the liens upon the Collateral granted pursuant to any of the Loan Documents.

(B) The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any lien granted to or held by the Administrative Agent upon the Collateral (i) upon indefeasible payment and satisfaction in full of the Obligations; (ii) as expressly permitted by, but only in accordance with, the terms of the applicable Loan Document; and (iii) if approved, authorized or ratified in writing by the Requisite Lender. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release the Collateral pursuant to this Section 12 .

(C) The Administrative Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by the Borrower or is cared for, protected or insured or that the liens granted to the Administrative Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Administrative Agent in this Section 12 or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lenders, except to the extent resulting from its gross negligence or willful misconduct and Administrative Agent and Requisite Lender shall not have any liability to the holder the Tranche B Promissory Note from and after the Put Acquisition for any action or omission taken in connection with the Loan, the Loan Documents or the Collateral and the Administrative Agent may take title to the Collateral in its own name or in the name of a nominee and shall, with the approval or direction of the Requisite Lender, be entitled to take such actions or omit to take such actions with respect to such Collateral and its rights in the Holder as the Requisite Lender, in its sole discretion, shall determine.

12.6 Post-Foreclosure Plans . If all or any portion of the Collateral is acquired by the Administrative Agent as a result of a foreclosure or the acceptance of an assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, the title to the Collateral, or any portion thereof, shall be held in the name of the Administrative Agent or a nominee or subsidiary of the Administrative Agent, as agent, for the ratable benefit of all Lenders. The Administrative Agent shall prepare a recommended course of action for the Collateral, which shall be subject to the approval of the Requisite Lender.

12.7 Approvals of Lenders . Administrative Agent and Requisite Lender shall not be required to communicate with the holder of the Tranche B Promissory Note. All communications from the Administrative Agent to any Requisite Lender requesting such Lender’s determination,

 

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consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender (unless such Lender and the Administrative Agent are the same Person), (b) shall be accompanied (unless such Lender and the Administrative Agent are the same Person) by a description of the matter or issue as to which such determination, approval, consent or disapproval is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include (unless such Lender and the Administrative Agent are the same Person), if reasonably requested by such Lender and to the extent not previously provided to such Lender, written materials and a summary of all oral information provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved, and (d) shall include (unless such Lender and the Administrative Agent are the same Person) the Administrative Agent’s recommended course of action or determination in respect thereof. Unless Requisite Lender shall give written notice to Administrative Agent that it specifically objects to the recommendation or determination of Administrative Agent (together with a reasonable written explanation of the reasons behind such objection) within ten (10) Business Days (or such lesser or greater period as may be specifically required under the express terms of the Loan Documents) of receipt of such communication, such Lender shall be deemed to have conclusively approved of or consented to such recommendation or determination.

12.8 Notice of Defaults . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received notice from the Requisite Lender or the Borrower referring to this Agreement, describing with reasonable specificity such Default, and stating that such notice is a “notice of default.” If any Lender (excluding any Lender which is also serving as the Administrative Agent) becomes aware of any Default or Event of Default, it shall promptly send to the Administrative Agent such a “notice of default”. Further, if the Administrative Agent receives such a “notice of default,” the Administrative Agent shall give prompt notice thereof to the Requisite Lenders. Under no circumstances following the Put Acquisition is the holder of the Tranche B Promissory Note entitled to any notice, report or other information from Requisite Lender or Administrative Agent.

12.9 Successor Administrative Agent . The Administrative Agent may resign at any time as Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Requisite Lender shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment within thirty (30) days after the current Administrative Agent’s giving of notice of resignation, then the current Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible Assignee. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. After any Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 12 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. Notwithstanding anything contained herein to the contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any of its affiliates by giving the Borrower and each Lender prior written notice.

 

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12.10 Amendments and Waivers . From and after the Put Acquisition, (i) any consent or approval required or permitted by this Agreement or in any Loan Document (or in the Intercreditor Agreement) to be given by the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document (or in the Intercreditor Agreement) may be amended, (iii) the performance or observance by the Borrower or any other party to the Loan Documents of any terms of this Agreement or such other Loan Document may be waived, (iv) the acceleration of the maturity of the Loan may be rescinded and (v) the continuance of any Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Requisite Lender, and, in the case of an amendment to any Loan Document, the written consent of the Borrower. Notwithstanding the foregoing or anything herein or in the Loan Documents to the contrary, to the extent that this Agreement or the other Loan Documents condition a consent or approval upon Requisite Lender’s consent, it is agreed to hereunder that Borrower shall make all requests of such consent and approval of Administrative Agent (notwithstanding that Requisite Lender’s consent is required) and all communication with the Lenders with respect to such matter which Borrower has made a request shall be to and from the Administrative Agent. It is expressly understood that Borrower shall not be obligated or have the right to communicate or interface directly with any Lender or Lenders concerning any consents, approvals, modifications or amendments or waivers hereunder.

12.11 No Joint Venture or Partnership; No Third Party Beneficiaries; No Liability of Administrative Agent and Lenders.

 

  (A) Borrower, Administrative Agent and Lender intend that the relationships created under this Agreement and the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower, Administrative Agent and/or Lenders nor to grant Administrative Agent or any Lender any interest in the Collateral other than that of mortgagee, beneficiary or lender.

 

  (B) This Agreement and the other Loan Documents are solely for the benefit of Administrative Agent, Lenders and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Administrative Agent, Lenders and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.

12.12 Administrative Agent’s and Lender’s Agents. Administrative Agent and/or any Requisite Lender may designate an agent or independent contractor to exercise any of such Person’s rights under this Agreement or any of the other Loan Documents. Any reference to Administrative Agent or any Lender Requisite herein or in any of the other Loan Documents shall include Administrative Agent’s and such Lender’s agents, employees or independent contractors.

 

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12.13 Other .

(A) No Lender shall be responsible for the failure of any other Lender to perform any obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to perform any obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make or to perform any obligation to be made or performed by such other Lender. The liability of each Lender hereunder shall be several and not joint.

(B) Following the Put Acquisition, if the holder of the Tranche B Promissory Note shall receive payment of any principal of any Note or of interest thereon at any time that the other Obligations of the Borrower are not then fully satisfied, the holder of the Tranche B Promissory Note shall promptly pay such payments over to the holder of the Tranche A Promissory Note.

(C) From and after the Put Acquisition, the holder of the Tranche B Promissory Note shall be bound by the terms and provisions of this Agreement as if it were a party hereto.

 

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Witness the due execution hereof by the undersigned as of the date first written above.

 

BORROWER:

 

TRT NOIP FIXED MEZZ HOLDCO LLC, a

Delaware limited liability company

By:  

/s/ GREG MORAN

Name:  

Greg Moran

Its:  

Authorized Signer

LENDER :

 

iSTAR FINANCIAL INC., a Maryland corporation

By:  

/s/ SAMANTHA GARBUS

Name:  

Samantha Garbus

Its:  

Senior VP


EXHIBIT A

Each Property and Property Owner

 

Property

  

Property Owner

2000 & 2100 Corporate Center Dr., Newbury Park, CA    TRT NOIP Corporate Center Drive – Newbury Park LP
3701 Doolittle Drive, Redondo Beach, CA    TRT NOIP Doolittle – Redondo Beach LP
5200 Sheila Street, Commerce, CA    TRT NOIP Sheila – Commerce LP
1920 E. Maple Drive, El Segundo, CA    TRT NOIP Maple – El Segundo LP
6000 Connection Drive, Irving, TX    TRT NOIP Connection – Irving LP
1460 N. Glenville Dr., Richardson, TX    TRT NOIP Glenville – Richardson LP
6 Sylvan Way, Parsippany, NJ    TRT NOIP Sylvan Way – Parsippany LLC
1600–1601 SW 80th Street, Plantation, FL    TRT NOIP SW 80 – Plantation LLC
200 Corporate Drive, Dixon, IL    TRT NOIP Corporate Drive – Dixon LLC
11493 Sunset Hills Road, Reston, VA    iStar CTL Sunset Hills – Reston LLC
3201 Columbia Road, Richfield, OH    TRT NOIP Columbia – Richfield LLC
1150 South Columbia Drive, Campbellsville, KY    TRT NOIP Columbia – Campbellsville LLC
15350–15395 Vickery Drive, Houston, TX    TRT NOIP Eagle LP
18300 East 28th Avenue, Aurora, CO    TRT NOIP East 28 – Aurora LLC


EXHIBIT B

Legal Description of Land

(attached hereto)


6 Sylvan Way, Parsippany, NJ (AVIS BUDGET GROUP)

All that certain lot, parcel, tract of land situate, lying and being in the Township of Parsippany-Troy Hills, County of Morris, and the State of New Jersey and is more particularly described as follows:

BEGINNING at a point in the Northeasterly line of Sylvan Way, said point being distant 668.37 feet Southeasterly along various courses and distances from the corner formed by the intersection of the Northeasterly line of Sylvan Way and the Southeasterly line of Century Drive running thence

(1) North 28 degrees 44 minutes 05 seconds East, 1235.73 feet to a point; thence

(2) South 80 degrees 57 minutes 24 seconds East, 78.00 feet to a point; thence

(3) North 88 degrees 31 minutes 45 seconds East, 166.60 feet to a point; thence

(4) North 11 degrees 08 minutes 00 seconds East, 43.72 feet to a point; thence

(5) South 67 degrees 38 minutes 15 seconds East, 630.45 feet to a point; thence

(6) South 28 degrees 37 minutes 00 seconds West, 380.08 feet to a point; thence

(7) North 61 degrees 15 minutes 55 seconds West, 226.37 feet to a point; thence

(8) North 81 degrees 41 minutes 11 seconds West, 40.50 feet to a point; thence

(9) South 28 degrees 44 minutes 05 seconds West, 869.81 feet to a point in the Northeasterly line of Sylvan Way; thence

(10) Along the Northeasterly line of Sylvan Way North 68 degrees 01 minutes 43 seconds West, 35.01 feet to a point; thence

(11) Still along the Northeasterly line of Sylvan Way North 80 degrees 46 minutes 52 seconds West, 488.47 feet to a point; thence

(12) Continuing along the Northeasterly line of Sylvan Way North 81 degrees 13 minutes 00 seconds West, 76.60 feet to the point or place of BEGINNING.

Being also known as Lot 1.09 in Block 202 on map entitled “Final Plat Section 2, Bellemead Development Corporation Lot 1.09 Block 202 sheets 71 and 72 Parsippany-Troy Hills, Morris County, New Jersey” said map being filed in the Morris County Clerk’s Office on November 7, 1977 as Map # 3640.

Together with the rights of a 15 foot wide storm sewer easement recorded in Deed Book 2540 at Page 906, as amended in Deed Book 2738 at Page 722.

Together with the rights to storm drainage easement recorded in Deed Book 2034 at Page 1152.


200 Corporate Drive, Dixon, IL (SPECTRUM BRANDS)

Lot Three (3) of Lee County Business Park—Phase 2, located in part of Section 16, Township 21 North, Range 9 East of the Fourth Principal Meridian, Lee County, Illinois, according to the Plat thereof recorded March 19, 2002 in Book 0203 at Page 2755 as Document No. 2002002280 and filed in Plat Book L at page 31.


6000 Connection Drive, Irving, TX (NOKIA)

BEING all of LOT 1, BLOCK A, RONOKO ADDITION, as recorded in Volume 97099, Page 2254, Deed Records, Dallas County, Texas, situated in the JAMES A. MOORE SURVEY, ABSTRACT NO. 908 and the D.W. BARNETT SURVEY, ABSTRACT NO. 216, Dallas County, Texas and being more particularly described as follows:

BEGINNING at 1/2” iron rod found for corner at the most southerly corner of said LOT 1, being in the northerly right-of-way of SH 114;

THENCE North 57 degrees 14 minutes 19 seconds West a distance of 58.30 feet a 1/2-inch iron rod found corner at the beginning of a non-tangent curve to the right having a central angle of 02 degrees 05 minutes 06 seconds, a radius of 520.00 feet, a chord distance of 18.92 feet and bearing North 48 degrees 21 minutes 44 seconds West;

THENCE along said curve to the right an arc length of 18.92 feet to a 1/2-inch iron rod found at the point of beginning of a curve to the left having a central angle of 09 degrees 44 minutes 51 seconds, a radius of 275.00 feet, a chord distance of 46.73 feet and bearing North 52 degrees 11 minutes 36 seconds west;

THENCE along said curve to the left an arc length of 46.79 feet to a 1/2-inch iron rod found for corner;

THENCE North 57 degrees 15 minutes 45 seconds West a distance of 99.43 feet to a 1/2-inch iron rod found for corner at the beginning of a curve to the right having a central angle of 85 degrees 45 minutes 04 seconds a radius of 40.00 feet, a chord distance of 54.43 feet and bearing North 14 degrees 23 minutes 13 seconds West;

THENCE along said curve to the right an arc length of 59.87 feet to a Y” cut found for corner;

THENCE North 28 degrees 29 minutes 19 seconds East a distance of 128.17 feet to a 1/2-inch iron rod found for corner at the beginning of a curve to the left having a central angle of 13 degrees 11 minutes 49 seconds, a radius of 605.46 feet, a chord distance of 139.15 feet and bearing of North 19 degrees 18 minutes 05 seconds East;

THENCE along said curve to the left an arc length of 139.46 feet to a “X” cut found for corner;

THENCE North 12 degrees 42 minutes 10 seconds East a distance of 333.73 feet to a 1/2-inch iron rod found for corner;

THENCE North 62 degrees 53 minutes 50 seconds East a distance of 15.62 feet to a 1/2-inch iron rod found for corner;

THENCE North 12 degrees 42 minutes 10 seconds East a distance of 126.79 feet to a 1/2-inch iron rod found for corner;

THENCE North 41 degrees 59 minutes 45 Seconds East a distance of 32.75 feet to a 1/2-inch iron rod found for corner in the south right of way line of Old Royal Lane, said iron rod also being South 05 degrees 51 minutes 23 seconds East a distance of 3.34 feet from the new right of way alignment of Royal Lane;


THENCE South 5 degrees 51 minutes 23 seconds East a distance of 30.81 feet to a 1/2-inch iron rod found for corner;

THENCE South 12 degrees 26 minutes 23 seconds East a distance of 95.00 feet to a 1/2-inch iron rod found for corner;

THENCE South 31 degrees 46 minutes 23 seconds East a distance of 76.00 feet to a 1/2-inch iron rod found for corner;

THENCE South 63 degrees 01 minutes 23 seconds East a distance of 93.00 feet to a 1/2-inch iron rod found for corner;

THENCE South 80 degrees 31 minutes 23 seconds East a distance of 188.88 feet to a 1/2-inch iron rod found for corner;

THENCE South 18 degrees 21 minutes 23 seconds East a distance of 35.39 feet to a 1/2-inch iron rod found for corner;

THENCE South 58 degrees 11 minutes 22 seconds East a distance of 182.22 feet to a 1/2-inch iron rod found for corner;

THENCE South 71 degrees 12 minutes 56 seconds East a distance of 260.67 feet to a 1/2-inch iron rod found for corner;

THENCE South 66 degrees 12 minutes 52 seconds East a distance of 253.32 feet to a 1/2-inch iron rod found for corner;

THENCE South 56 degrees 26 minutes 02 seconds West a distance of 35.70 feet to a 1/2-inch iron rod found for corner;

THENCE South 72 degrees 50 minutes 18 seconds West a distance of 1040.96 feet to a 1/2-inch iron rod found for corner in the northeast right of way line of State Highway No. 114 and the POINT OF BEGINNING, CONTAINING 10.978 acres or 478,186 square feet of land.


18300 East 28th Avenue, Aurora, CO (EAGLE DENVER)

Lot 2, Block 1, Upland Park II Subdivision Filing No. 9, County of Adams, State of Colorado.


15350–15395 Vickery Drive, Houston, TX (EAGLE HOUSTON)

Tract I

All that certain 23.592 acres (1,027,654 square feet) of land being that same certain called 23.5513 acre tract described in the deed dated December 31, 2001, from EGL, Inc. to iStar Eagle LP, filed for record in Clerk’s File No. V508695, Film Code No. 547-37-1679, of the Official Public Records of Real Property of Harris County, Texas and being all of Restricted Reserve “A”, Eagle USA according to the plat thereof filed for record at Film Code No. 386032, of the Map Records of Harris County, Texas, out of the E.F. Marshall Survey, A-1316 and the W.H. Lloyd Survey, A-1407, Houston, Harris County, Texas and being more particularly described by metes and bounds as follows:

BEGINNING at a called for and found 5/8” iron rod marking the northwest corner of said Eagle USA and the southwest corner of Rosovich Limited Partnership Plat according to the plat thereof filed for record at Film Code No. 360057, of the Map Records of Harris County, Texas, being further described in the deed for the called 8.000 acre tract, dated June 1, 2007, from Marbru Limited Partnership to AMB Property II, L.P., filed for record in Clerk’s File No. 20070459686, Film Code No. RP 047-69-0523, of the Official Public Records of Real Property of Harris County, Texas, said rod located in the east right-of-way line of Vickery Drive (Width Varies);

THENCE, S 75º 14’ 12” E – 886.48’, with the south line of said Rosovich Limited Partnership Plat and said 8.000 acre tract, to a called for and found 5/8” iron rod marking the southeast corner of said Rosovich Limited Partnership Plat and said 8.000 tract;

THENCE, N 02º 48’ 21” W – 333.99’, with the east line of said Rosovich Limited Partnership Plat and said 8.000 acre tract, to a called for and found 5/8” iron rod marking the southwest corner of that certain called 7.591 acre tract described in the deed dated February 15, 1994, from Ithaca Investments, Ltd. to Kafco Trucking, Inc., filed for record in Clerk’s File No. P717364, Film Code No. 200-56-0708, of the Official Public Records of Real Property of Harris County, Texas;

THENCE, N 87º 10’ 16” E – 537.52’, along a line 8.03’ north of and parallel with the south line of Unrestricted Reserve “F, World/Houston International Business Center, according to the plat thereof recorded in Volume 278, Page 25, of the Map Records of Harris County, Texas and with the south line of said 7.591 acre tract, to a set 5/8” iron rod with cap marking the southeast corner of said Reserve “F” and said 7.591 acre tract, and being located in the east line of said Reserve “F” common with west line of Lot 122, Farmstead Acres according to the plat thereof recorded in Volume 21, Page 5, of the Map Records of Harris County, Texas, from which a found 1/2” iron rod bears S 66º 55’ 19” W – 1.00’;

THENCE, S 02º 43’ 46” E – 8.03’, with said east line Reserve “F” common with the west line of said Lot 122, Farmstead Acres, to a called for and found 5/8” iron rod marking the southeast corner of said Reserve “F”;

THENCE, S 02º 57’ 41” E – 389.54’, continuing with said west line of Lot 122, to a set 5/8” iron rod with cap marking the southwest corner of said Lot 122 and being located in the north right-of-way line of Edward Drive (60’ Wide), from which a found 1” iron pipe bears N 82º 44’ 59” E – 1.29’, said rod being a point on a curve to the right having a central angle of 42º 50’ 19”, a radius of 25.00’ and a chord bearing N 71º 32’ 41” W – 18.26’, the center of said curve being located on a radial line bearing N 02º 58’ 05” W, from said point;


THENCE, with the right-of-way line of Edward Drive and said curve to the right for an arc distance of 18.69’, to a set 5/8” iron rod with cap marking the Point of Reverse Curvature of a curve to the left having a central angle of 265º 39’ 49”, a radius of 50.00’ and a chord bearing S 02º 57’ 41” E – 73.34’;

THENCE, continuing with said right-of-way line of Edward Drive and with said curve to the left for an arc distance of 231.84’, to a set 5/8” iron rod with cap marking the Point of Reverse Curvature of a curve to the right having a central angle of 42º 50’ 19”, a radius of 25.00’ and a chord bearing N 65º 37’ 19” E – 18.26’;

THENCE, continuing with said right-of-way line of Edward Drive and said curve to the right for an arc distance of 18.69’, to a set 5/8” iron rod with cap marking the northwest corner of Lot 123, of said Farmstead Acres, from which a found 5/8” iron rod bears S 69º 44’ 59” W – 0.83’;

THENCE, S 02º 57’ 41” E – 361.45’, with the west line of said Lot 123, to a found 1/2” iron pipe marking the southwest corner of said Lot 123 and being in the north right-of-way line of the 150’ wide Houston Lighting and Power Company Easement recorded in Volume 1440, Page 246, of the Deed Records of Harris County, Texas, from which a found  1 / 2 ” iron rod bears N 54º 14’ 30” W – 3.36’;

THENCE, S 84º 12’ 46” W – 1,417.94’, with said north line of the 150’ wide Houston Lighting & Power Company easement, to a found 3/4” iron pipe from corner, located in the aforementioned east right-of-way line of Vickery Drive;

THENCE, N 02º 45’ 36” W – 479.79’, with said east right-of-way line of Vickery Drive, to a set 5/8” iron rod with cap marking a point on a curve to the right having a central angle of 10º 17’ 00”, a radius of 1,940.00’ and a chord bearing N 02º 16’ 32” E – 347.72’, the center of said curve being located on a radial line bearing N 87º 08’ 02” E, from said point;

THENCE, continuing with said east right-of-way line of Vickery Drive and with said curve to the right for an arc distance of 348.19’, to the POINT OF BEGINNING of the herein described tract and containing 23.592 acres (1,027,654 square feet) of land, more or less.

Tract II

All that certain 14.0314 acres of land out of that certain 14.0339 acre tract described in the deed dated October 10, 2000, from Houston D. & F., Ltd. (f/k/a D. & F., Ltd.) and William R. Durrill, Jr., as Successor Trustee of the Trust created under the Will of Paul W. Drummet, deceased to EGL Eagle Global Logistics, LP, recorded at Clerk File No. U674628, Film Code No. 535-17-3281, of the Official Public Records of Real Property of Harris County, Texas, out of Eagle Global Logistics, according to the plat thereof recorded at Film Code No. 475078, of the Map Records of Harris County, Texas, out of the Mary E. Colby Survey, A-1649 and the W.C.R.R. Company Survey, A-1078, Houston, Harris County, Texas and being more particularly described by metes and bounds as follows:

BEGINNING at a found 1-1/2” aluminum disk in concrete marking the southeast corner of said Eagle Global Logistics located in the west right-of-way line of Vickery Drive (Width Varies) (called 3.92 acre tract) described in the deed dated July 19, 1978, from William G. Thompson, Trustee to Public dedication of street easement, recorded at Clerk File No. F-747174, Film Code No. 104-99-2222, of the Official Public Records of Real Property of Harris County, Texas;


THENCE S 84° 13’ 06” W – 330.29’, with the north line of that certain called 1.137 acre tract being described in the deed dated January 30, 1975, from Paul W. Drummet to Houston Lighting & Power Company, recorded at Clerk File No. E-373341, Film Code No. 116-20-1491, of the Official Public Records of Real Property of Harris County, Texas, to a found 5/8” iron rod for corner;

THENCE N 02° 09’ 42” W – 49.60’, with the east line of that certain called 3.889 acre tract described in the deed dated July 25, 1978, from Joe Price, Trustee to World/Houston, Inc., recorded at Clerk File No. F-710988, Film Code No. 102-91-1098, of the Official Public Records of Real Property of Harris County, Texas, to a found 5/8” iron rod for corner;

THENCE S 86° 10’ 29” W – 453.01’, with the north line of said 3.889 acre tract and the north line of that certain called 120’ Public Drainage Easement recorded at Clerk File No. F-737749, Film Code No. 104-87-1904, of the Official Public Records of Real Property of Harris County, Texas, to a found 1” iron pipe for corner;

THENCE N 03° 01’ 19” W – 790.41,’ with the west right-of-way line of the Public Drainage Easement recorded at Clerk File No. F-737748, Film Code No. 104-87-1897, of the Official Public Records of Real Property of Harris County, Texas, and its extension, to a found 5/8” iron rod with cap for corner in the south right-of-way line of World/Houston Parkway (110’ Wide) a called 3.359 acre tract described in the document dated February 6, 1979, from Robert P. Kelly to Public Dedication of Street Easement, recorded at Clerk File No. F985072, Film Code No. 121-88-1610, of the Official Public Records of Real Property of Harris County, Texas;

THENCE N 87° 39’ 30” E – 252.70,’ with said south right-of-way line of World Houston Parkway, to a found 5/8” iron rod with cap for a Point of Curvature of a curve to the right having a central angle of 08° 11’ 45” and a radius of 1,145.00’;

THENCE continuing with said south right-of-way line of World/Houston Parkway and said curve to the right for an arc distance of 163.79’, to a found 5/8” iron rod with cap for the Pont of Tangency;

THENCE S 84° 08’ 45” E – 358.96’, continuing with said south right-of-way line of World/Houston Parkway, to a set 5/8” iron rod with cap marking a cutback corner;

THENCE S 43° 27’ 51” E – 22.75’, with said cutback line, to a set 5/8” iron rod with cap for a cutback corner in the aforementioned west right-of-way line of Vickery Drive;

THENCE S 02° 46’ 58” E – 728.43’, with said west right-of-way line of Vickery Drive, to the POINT OF BEGINNING of the herein described tract and containing 14.0314 acres (611,206 square feet) of land, more or less.


1600–1601 SW 80th Street, Plantation, FL (CRAWFORD)

Parcel 1 - “Kemper Site 1”

All of Tract C of JACARANDA PARCEL 834, according to the map or plat thereof as recorded in Plat Book 133, at Page 28, of the Public Records of Broward County, Florida, LESS that part described as “Lake” on said Plat of JACARANDA PARCEL 834:

and

That portion of Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, page 28, of the Public Records of Broward County, Florida, being more particularly described as follows:

Commencing at the Northwest corner of said Tract D, said point being on the arc of a circular curve, concave to the East and to said Point A radial line bears North 70°48’08” West; thence Southerly along the West boundary of said Tract D, along the arc of said curve, having a radius of 470.00 feet and a central angle of 21°38’44”, an arc distance of 177.56 feet to the point of tangency; thence South 02°26’51” East, a distance of 67.57 feet to the Point of Beginning; thence continue along the West boundary line of said Tract D, South 02°26’51” East, a distance of 208.35 feet to the point of curvature of a circular curve, concave to the Northeast; thence Southeasterly along the arc of said curve, having a radius of 320.00 feet and a central angle of 33°55’05”, an arc distance of 189.43 feet; thence North 54°49’34” East, a distance of 157.61 feet to a point on the arc of a circular curve concave to the East and to said point a radial line bears South 52°35’50” West; thence Northerly along the arc of said curve having a radius of 192.84 feet and a central angle of 32°20’27”, an arc distance of 108.85 feet; thence North 89°49’23” West, a distance of 69.30 feet; thence North 02°11’44” West, a distance of 131.10 feet; thence North 12°14’15” East, a distance of 45.85 feet; thence North 79°49’09” West, a distance of 97.80 feet to the Point of Beginning. Said lands situate, lying and being in Broward County, Florida.

Parcel 2 - “Kemper Site 2”

A portion of Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, at Page 28, of the Public Records of Broward County, Florida, being more particularly described as follows:

Commencing at the Northwest corner of said Tract D, said point being on the arc of a circular curve concave to the East and to said Point A, radial line bears North 70°48’08” West; thence Southerly along the West boundary of said Tract D, along the arc of said curve, having a radius of 470.00 feet and a central angle of 3°02’51”, an arc distance of 25.00 feet to the Point of Beginning; thence continue Southerly along the arc of said curve concave to the Southeast, having a radius of 470.00 feet and a central angle of 18°35’51”, an arc distance of 152.56 feet to the Point of Tangency; thence South 02°26’51” East, a distance of 67.57 feet; thence South 79°49’09” East, a distance of 97.80 feet; thence South 12°14’15” West, a distance of 45.85 feet; thence South 02°11’44” East, a distance of 131.10 feet; thence South 89°49’23” East, a distance of 69.30 feet to a point on the arc of a circular curve concave to the East and to said Point A, radial line bears South 84°56’17” West; thence Southerly along the arc of said curve having a radius of 192.84 feet and a central angle of 32°20’27”, an arc distance of 108.85 feet; thence South 54°49’34” West, a distance of 157.61 feet to a point on the arc of a circular curve concave to the Northeast and to said Point A, radial line bears South 53°38’04” West; thence Southeasterly along the arc of said curve having a radius of 320.00 feet and a central angle of 38°51’35”, an arc


distance of 217.03 feet; thence South 75°13’33” East, a distance of 535.66 feet to the Point of curvature of a circular curve concave to the North; thence Easterly along the arc of said curve having a radius of 270.00 feet and a central angle of 25°30’28”, an arc distance of 120.20 feet; thence North 20°26’06” West, a distance of 348.54 feet; thence North 75°13’33” West, a distance of 321.32 feet; thence North 22°50’26” East, a distance of 90.69 feet; thence North 04°22’48” West, a distance of 76.45 feet to a point on the arc of a circular curve concave to the Northwest and to said Point A, radial line bears South 00°06’30” East; thence Northwesterly along the arc of said curve, having a radius of 400.00 feet and a central angle of 10°41’25”, an arc distance of 74.63 feet; thence North 79°25’05” West, a distance of 333.97 feet to the point of curvature of a circular curve concave to the Northeast; thence Northerly along the arc of said curve, having a radius of 75.00 feet and a central angle of 76°02’30”, an arc distance of 99.54 feet to the Point of compound curvature of a circular curve concave to the East; thence Northerly along the arc of said curve having a radius of 450.00 feet and a central angle of 17°05’17” an arc distance of 134.21 feet to the point of reverse curvature of a circular curve concave to the Southwest; thence Northwesterly along the arc of said curve having a radius of 20.00 feet and a central angle of 88°46’51”; an arc distance of 30.99 feet to the Point of Beginning. Said lands situate, lying and being in Broward County, Florida.

Parcel 3 - “Kemper Site 3”

A portion of Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, Page 28, of the Public Records of Broward County, Florida, being more particularly described as follows:

Commencing at the Northwest corner of said Tract D; thence along the North boundary line of said Tract D, South 70°48’08” East, a distance of 254.00 feet; thence continue along the North line of said Tract D, North 85°12’01” East, a distance of 199.79 feet; thence South 04°22’48” East, a distance of 252.42 feet to the Point of Beginning, said point of beginning being on the arc of a circular curve concave to the Northwest and to said point a radial line bears South 00°06’30” East; thence Northeasterly along the arc of said curve, having a radius of 400.00 feet and a central angle of 49°58’35”, an arc distance of 348.90 feet to the point of reverse curvature; thence continue Northeasterly along the arc of said curve having a radius of 150.00 feet and a central angle of 29°37’55”, an arc distance of 77.58 feet to the point of reverse curvature; thence continue Northeasterly along the arc of said curve having a radius of 100.00 feet and a central angle of 74°20’49” an arc distance of 129.76 feet to a point on the North line of said Parcel D; thence along said North line, North 85°12’01” East, a distance of 80.78 feet to the Northeast corner of said Tract D; thence South 02°19’59” East along the East line of said Tract D, a distance of 61.65 feet to the point of curvature; thence Southerly along the arc of a circular curve concave to the East, having a radius of 472.20 feet and a central angle of 10°20’15” an arc distance of 85.20 feet to the point of tangency; thence South 12°40’14” East, a distance of 404.20 feet to the point of curvature; thence along the arc of said curve, concave to the Northwest having a radius of 270.00 feet and a central angle of 91°56’13”, an arc distance of 433.24 feet; thence North 20°26’06” West, a distance of 348.54 feet; thence North 75°13’33” West, a distance of 321.32 feet; thence North 22°50’26” East, a distance of 90.69 feet; thence North 04°22’48” West, a distance of 76.45 feet to the Point of Beginning. Said lands situate, lying and being in Broward County, Florida.


KEMPER SITE 1, KEMPER SITE 2, AND KEMPER SITE 3 COLLECTIVELY BEING THE SAME PROPERTY DESCRIBED AS FOLLOWS:

Parcel 1:

All of Tract C of JACARANDA PARCEL 834, according to map or Plat thereof as recorded in Plat Book 133, at Page 28, of the Public Records of Broward County, Florida, less that part described as “Lake” on said Plat of Jacaranda Parcel 834;

and

That portion of Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, at Page 28 of the Public Records of Broward County, Florida, being more particularly described as follows:

Commencing at the NW corner of said Tract D; thence along the Westerly boundary of said Tract D, on the arc of a curve to the left, having a radius of 470 feet and a central angle of 3°02’52”; run Southerly 25 feet to the Point of Beginning; thence continue along said Westerly boundary on the arc of said curve to the left, having a radius of 470 feet and a central angle of 18°35’51”; run Southerly 152.26 feet to a point of tangency; thence S. 2°26’51” E, 275.92 feet along said Westerly boundary, being the tangent extended, to a point of curvature of a curve to the left; thence along said Westerly boundary on the arc of said curve to the left, having a radius of 320 feet and a central angle of 47°42’20”, run Southeasterly 266.44 feet; thence run N. 39°50’49” E, 190.72 feet along a line radial to the last described course; thence run N. 2°26’51” W, 256.57 feet along a line 233 feet East of, as measured at right angles, and parallel with said Westerly boundary of Tract D, thence run N. 79°25”05” W, 158.95 feet to a point of curvature of a curve to the right; thence along the arc of said curve to the right, having a radius of 75 feet and a central angle of 76°02’30”, run Northwesterly 99.54 feet to a point of compound curvature; thence along the arc of a curve to the right, having a radius of 450 feet and a central angle of 17°05’17”, run Northerly 134.21 feet to a point of reverse curvature; thence along the arc of a curve to the left, having a radius of 20 feet and a central angle of 88°46’51”, run Northwesterly 30.99 feet to the Point of Beginning.

Parcel 2:

Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, at Page 28, of the Public Records of Broward County, Florida; excepting therefrom that portion thereof being more particularly described as follows:

Commence at the Northwest corner of said Tract D; thence along the Westerly boundary of said Tract D, on the arc of a curve to the left, having a radius of 470 feet and a central angle of 3°02’52”, run Southerly 25 feet to the Point of Beginning; thence continue along said Westerly boundary on the arc of said curve to the left, having a radius of 470 feet and a central angle of 18°35’51”, run Southerly 152.26 feet to a point of tangency; thence run South 2°26’51” East, 275.92 feet along said Westerly boundary, being the tangent extended, to a point of curvature of a curve to the left, thence along said Westerly boundary on the arc of said curve to the left, having a radius of 320 feet and a central angle of 47°42’20”, run Southeasterly, 265.44 feet; thence run North 39°50’49” East, 190.72 feet along a line radial to the last described course; thence run North 2°26’51” West, 256.57 feet along a line 233 feet East of, as measured at right angles, and parallel with said Westerly boundary of Tract D; thence run North 79°25’05” West, 158.95 feet to a point of curvature of a curve to the right; thence along the arc of said curve to the right, having a radius of 75 feet and a central angle of 76°02’30”, run Northwesterly 99.54 feet to a point of compound curvature; thence along the arc of a curve to the right, having a radius of 450 feet and a central angle of 17°05’17”, run Northerly 134.21 feet to a point of reverse curvature; thence along the arc of a curve to the left, having a radius of 20 feet and a central angle of 88°46’51”, run Northwesterly 30.99 feet to the Point of Beginning, and excepting therefrom that portion thereof described as follows:


That portion of Tract D, according to the Plat of JACARANDA PARCEL 834, as recorded in Plat Book 133, at Page 28, of the Public Records of Broward County, Florida, described as follows:

Commencing at the Northeast corner of said Tract D; thence run South 85°12’01” West, (on a grid bearing) 80.79 feet along the Northerly boundary of said Tract D, to the Point of Beginning, being a point of curvature of a curve running Southwesterly to the right; thence along the arc of said curve to the right (the Southwesterly projection of the last described course being radial to said curve) having a radius of 100 feet and a central angle of 74°20’49”, run Southwesterly 129.76 feet to a point of reverse curvature; thence along the arc of a curve to the left, having a radius of 150 feet and a central angle of 29’37’55”, run Southwesterly, 77.58 feet to a point of reverse curvature; thence along the arc of a curve to the right, having a radius of 400 feet and a central angle of 60°40’, run Southwesterly and Northwesterly 423.53 feet to a point of tangency; thence run North 79°25’05” West, 333.97 feet along the tangent extended to a point of curvature of a curve to the right; thence along the arc of said curve to the right, having a radius of 75 feet and a central angle of 76°02’30”, run Northwesterly 99.54 feet to a point of compound curvature; thence along the arc of a curve to the right, having a radius of 450 feet and a central angle of 17°05’17”, run Northerly 134.21 feet to a point of reverse curvature; thence along the arc of a curve to the left, having a radius of 20 feet and a central angle of 88°46’51”, run Northwesterly 30.99 feet to a point of intersection with the arc of a curve running Northeasterly to the right, a radial at said point bearing South 73°51’ East; thence along the arc of said curve to the right, having a radius of 470 feet and a central angle of 3°02’52”, run Northeasterly 25 feet to the Northwest corner of said Tract D; thence run South 70°48’08” East 254 feet along the Northerly boundary of said Tract D to a point of intersection; thence run North 85°12’01” East, 654.05 feet along said Northerly boundary, to the Point of Beginning. Said lands situate in the City of Plantation, Broward County, Florida.


3201 Columbia Road, Richfield, OH (FEDEX)

Situated in the Village of Richfield, County of Summit and State of Ohio and known as being part of Block “F” in the Friedman Industrial Park Allotment of Part of Original Richfield Township Lot 14, Tract 5, as shown by the recorded Plat in Volume 67, Pages 63-65 of Summit County Plat Records, and part of Original Richfield Township Lots 14 and 15, Tract 5, and bounded and described as follows:

Beginning at the Northwesterly corner of said Original Lot 14, said point being in the Summit County/Cuyahoga County line;

Thence South 02 deg. 51’ 17” West along the Westerly line of said Original Lot 14, 438.56 feet to its intersection with the Northeasterly line of Columbia Road, 60 feet wide, and the principal place of beginning of the parcel herein described, and from which point a 5/8 inch iron pin found bears South 02 deg. 51’ 17” West, 0.13 feet, South 87 deg. 58’ 43” East, 0.08 feet;

Thence South 87 deg. 58’ 08” East along the Southerly line of Block “E” in said Friedman Industrial Park Allotment, being also the Southerly line of a parcel of land conveyed to Eott Energy OP by deed recorded in Volume 1654, Page 33 of the Official Records of Summit County, 994.28 feet to its intersection with the Easterly line of said land so conveyed, and from which point a 5/8 inch iron pin bears North 87 deg. 58’ 08” West, 0.05 feet, North 02 deg. 01’ 52” East, 0.39 feet;

Thence North 02 deg. 51’ 17” East along the Easterly line of said Block “E” and said land conveyed to Eott Energy OP, 438.56 feet to its intersection with the Summit County/Cuyahoga County line, and from which point a 5/8 inch iron pin bears North 02 deg. 51’ 17” East, 0.34 feet, North 87 deg. 08’ 43” West, 0.03 feet;

Thence South 87 deg. 58’ 08” East along the Northerly line of Summit County, 99.94 feet to an iron pin found at its intersection with the Westerly line of Original Lot 15, and from which point a 5/8 inch iron pin bears North 02 deg. 00’ 17” East, 0.34 feet, South 87 deg. 59’ 43” East, 0.15 feet;

Thence South 87 deg. 59’ 43” East along the Northerly line of Summit County, 2,219.75 feet to its intersection with a Westerly line of the remainder of a parcel of land conveyed to the Cleveland Electric Illuminating Company by deed recorded in Volume 4703, Page 152 of Summit County Records, and from which point a 5/8 inch pin bears North 02 deg. 00’ 17” East, 0.95 feet, South 87 deg. 59’ 43” East, 0.19 feet;

Thence South 02 deg. 00’ 17” West along said Westerly line of the remainder of said land conveyed to the Cleveland Electric Illuminating Company, 60.42 feet to its intersection with the Northwesterly line of the remainder of said land so conveyed, and from which point a 5/8 inch iron pin bears North 02 deg. 00’ 17” East, 0.81 feet, South 87 deg. 59’ 43” East, 0.24 feet;

Thence South 66 deg. 51’ 31” West along the Northwesterly line of the remainder of said land conveyed to the Cleveland Electric Illuminating Company and its Southwesterly prolongation, 2403.33 feet to its intersection with the Easterly line of a parcel of land conveyed to Bath Development Co. by deed recorded in Volume 2325, Page 1072 of the Official Records of Summit County, and from which point a 5/8 inch iron pin bears North 02 deg. 51’ 17” East, 0.05 feet, South 87 deg. 08’ 43” East, 0.22 feet;


Thence North 02 deg. 51’ 17” East along the Easterly line of said land conveyed to Bath Development Co., 543.18 feet to its intersection with the Northerly line of said land so conveyed, and from which point a 5/8 inch iron pin bears North 02 deg. 51’ 17” East, 0.07 feet, South 87 deg. 08’ 43” East, 0.23 feet;

Thence North 87 deg. 58’ 08” West along the Northerly line of said land conveyed to Bath Development Co. and its Westerly prolongation, 1,037.20 feet to its intersection with the Southeasterly prolongation of the Northwesterly line of Columbia Road, from which point a 5/8 inch iron pin bears South 02 deg. 01’ 52” West, 0.02 feet, South 87 deg. 58’ 08” East, 0.16 feet;

Thence North 47 deg. 09’ 48” West along the Southeasterly prolongation of the Northeasterly line of Columbia Road and along said Northeasterly line, 153.02 feet to the principal place of beginning and containing 32.4489 acres of land according to a survey by the North Coast Engineering and Surveying Co., Inc. in July of 1999, be the same more or less, but subject to all legal highways.

The courses used in this description are referenced to an assumed meridian and are used to indicate angles only.

PM: 50-02370; PPN: RI-00004-99-001.000


1460 N. Glenville Dr., Richardson, TX (NORTEL)

BEING 6.7036 acres of land in the Baurch Cantrell Survey, Abstract Number 265 in the city of Richardson, Dallas County, Texas, and also being Lot 3C in Block 7 of Corporate Square Subdivision, an addition to the city of Richardson, Dallas County, Texas, as recorded in Volume 95232, Page 475 of the Deed Records of Dallas County, Texas, and the subject tract being more particularly described by metes and bounds as follows:

COMMENCING at a point on the east right-of-way line of Glenville Drive (80’ right-of-way), said Point of Commencing being the southwest corner of Lot 3B of the replat of Lots 3A, 3B, and 3C of Block 7 of Corporate Square, as recorded in Volume 95007, Page 727 of the D.R.D.C.T. and said Point of Commencing also being the northwest corner of the Revised Lot 1, Block 7 Second Installment of Corporate Square;

THENCE North, a distance of 780.28 feet along the said east right-of-way line of Glenville Drive, same being the west boundary of the said Lot 3B, to a 1/2-inch found iron rod with yellow plastic cap stamped “HALFF ASSOC. INC.” (hereafter referred to as “with cap” at the northwest corner of the said Lot 3B, said point also being the POINT OF BEGINNING for the herein described tract of land;

THENCE North, a distance of 459.91 feet along the said east right- of-way line of Glenville Drive to an “X” in concrete found at the point of curvature for a curve to the right having a radius of 25.00 feet;

THENCE Northeasterly along said curve to the right, an arc distance of 39.27 feet through a central angle of 90 degrees 00 minutes 00 seconds (chord bearing North 45 degrees 00 minutes 00 seconds East, a distance of 35.36 feet) to a 1/2-inch found iron rod with cap at the point of tangency for said curve, said point being on the south right-of-way line of Commerce Drive (60’ right-of-way);

THENCE East, a distance of 552.44 feet along the said south right-of-way line to a 1/2-inch found iron rod with cap at the point of curvature for a curve to the right having a radius of 25.00 feet;

THENCE Southeasterly along said curve to the right; an arc distance of 39.24 feet through a central angle of 89 degrees 55 minutes 15 seconds (chord bearing South 45 degrees 02 minutes 23 seconds East, a distance of 35.33 feet) to a 1/2-inch found iron rod with cap at the point of tangency, said point being on the west right-of-way line of Presidential Drive (60’ right-of-way);

THENCE South 00 degrees 04 minutes 45 seconds East, a distance of 459.94 feet along the said west right-of-way line to a 1/2-inch found iron rod with cap, said point being the northeast corner of Lot 3A of the aforementioned replat and said point also being North 00 degrees 04 minutes 45 seconds West, a distance of 780.28 feet from the northeast corner of the aforementioned Revised Lot 1;


THENCE West, at a distance of 340.25 feet along the north line of the said Lot 3A passing the north common corner of Lots 3A and 3B, and continuing along the north line of the said Lot 3B for a total distance of 603.08 feet to the POINT OF BEGINNING AND CONTAINING 292,008 square feet, or 6.7036 acres of land, more or less.


2000 & 2100 Corporate Center Dr., Newbury Park, CA (WELLPOINT)

Parcel 1 of that Parcel Map Waiver No. 129 and Notice of Merger recorded December 16, 1997, as Instrument No. 97-170830 of Official Records, being all of Parcels 1 and 2 of Parcel Map No. 4750, in the City of Thousand Oaks, County of Ventura, State of California, as shown on map filed in Book 52, Page 86 of Parcel Maps, in the Office of the County Recorder of said County.

Except the Northeasterly 2.00 feet of said Parcel 2.

Also except all oil, gas and hydrocarbon substances in, under and upon said land, without the right to drill, dig or mine through the surface of the land therefore, and without the right to enter or encroach upon any portion of said land lying within 500 feet of the surface.

Also except all surface and underground water and water rights in, on and under said land, as granted to Rancho Conejo Mutual Water Co., in deed recorded October 6, 1959, in Book 1784, Page 393, Official Records, and re-recorded on December 17, 1959, in Book 1808, Page 175, Official Records.

Parcel 2 of that Parcel Map Waiver No. 129 and Notice of Merger recorded December 16, 1997, as Instrument No. 97-170830, Official Records, being all of Parcel 7 of Parcel Map No. 4013, in the City of Thousand Oaks, County of Ventura, State of California, as shown on map filed in Book 41, Page 13, of Parcel Maps, in the Office of the County Recorder of said County.

Together with the Northeasterly 2.00 feet of Parcel 2 of Parcel Map No. 4750, in the City of Thousand Oaks, County of Ventura, State of California, as shown on map recorded in Book 52, Page 86, of Parcel Maps, in the Office of the County Recorder of said County.

Except all oil, gas and hydrocarbon substances in, under and upon said land, without the right to drill, dig or mine through the surface of the land therefor, and without the right to enter or encroach upon any portion of said land lying within 500 feet of the surface.

Also except all surface and underground water and water rights in, on and under said land, as granted to Rancho Conejo Mutual Water Co., in deed recorded October 6, 1959, in Book 1784, Page 393, Official Records, and re-recorded on December 17, 1959, in Book 1808, Page 175, Official Records.

Together with non-exclusive easements for parking, vehicular and pedestrian ingress and egress established by that certain Reciprocal Easement Agreement dated June 23, 1997, recorded as Instrument No. 97-080355 of Official Records.


1920 E. Maple Drive, El Segundo, CA (EQUINOX)

Parcel 1:

A portion of that certain 68.970 Acre Parcel No. 2, as shown on Record of Survey Map of a portion of the North half of Section 7, Township 3 South, Range 14 West, in the Rancho Sausal Redondo, in the City of El Segundo, County of Los Angeles, State of California, as per map filed in Book 66, Page 5 of Record of Surveys, in the Office of the County Recorder of said County, more particularly described as follows:

Beginning at the intersection of that certain North line of said Parcel 2, shown as having a bearing of North 89° 59’ 20” East and a length of 2352.16 feet on said map, with the Westerly line of that certain Parcel “E” as described in deed to the Atchison, Topeka and Santa Fe Railway Company, recorded in Book 45888, Page 319, Official Records of said County, said point being distant North 89° 59’ 20” East along said North line and its Westerly prolongation, 784.83 feet, more or less, from the West line of said Parcel 2; thence Southerly along the Westerly line of said Parcel “E”, along the arc of a curve concave Easterly and having a radius of 369.27 feet, a distance of 75.02 feet to a point in a line that is parallel with and distant Easterly 777.23 feet at right angles from the Westerly line of said Parcel 2; thence along said parallel line and the Westerly line of said Parcel “E”, South 0° 00’ 20” East 322.49 feet to a point in a line that is parallel with and distant Southerly 397.00 feet at right angles from the North line of said Parcel 2; thence along last said parallel line South 89° 59’ 20” West 328.34 feet to a point in a line that is parallel with and distant 30.00 feet Easterly at right angles from the Easterly line of that certain 8.00 acre parcel of land as described in deed dated July 20, 1954 to Santa Fe Land Improvement Company, recorded in Book 45853, Page 297, Official Records of said County; thence along last said parallel line North 0° 00’ 20” West 397.00 feet to a point in the North line of said Parcel 2; thence along last said North line North 89° 59’ 20” East 335.94 feet to the point of beginning.

Except all natural gas contained in or under or that may be produced from said land, but with no surface rights together with the exclusive right to drill for and produce such natural gas from said land by whipstocking or directional drilling or other subsurface operations conducted from surface locations on other land, and the exclusive right to use the subsurface of said land for the purpose of injecting natural gas therein for storage and for repressuring the formations underlying said land but without the right of surface entry in any manner for the purpose of discovering or extracting such natural gas as conveyed to Standard Oil Company of California, a corporation, by deed recorded July 27, 1943, in Book 20145, Page 298, Official Records.

Also except all oil, hydrocarbon and mineral substances, if any, except natural gas, contained in or under or that may be produced from said land, but with no surface rights together with all those certain rights reserved by and unto the first party in that certain deed recorded in Book 20145, Page 298, Official Records, but without the right of surface entry for the purpose of extracting any such oil, hydrocarbon and mineral substances nor for any other purpose, as conveyed to Chanslor-Canfield Midway Oil Company, a Corporation, by deed recorded September 7, 1945, in Book 22243, Page 336, Official Records.


Parcel 2:

That certain real property situated in the City of El Segundo, County of Los Angeles, State of California, being a portion of that certain 60.970 Acre Parcel 2, as shown on Record of Survey Map of a portion of the North half of Section 7, Township 3 South, Range 14 West, in the Rancho Sausal Redondo, as per map filed in Book 66, Page 5, of Record of Surveys, in the Office of the County Recorder of said County, and being more particularly described as follows:

Beginning at the point of intersection of a line that is parallel with and distant Easterly 448.89 feet, measured at right angles, from the Westerly line of said Parcel 2, with a line that is parallel with and distant Southerly 397.00 feet, at right angles, from that certain Northerly line of said Parcel 2, shown on said Record of Survey Map as having a bearing of North 89° 59’ 20” East and a length of 2352.16 feet, said point being also the Southwest corner of that certain 3.00 acre parcel as described in deed dated October 24, 1955, from Santa Fe Land Improvement Company to Douglas Building Corporation, recorded January 5, 1956, as Instrument No. 1578, in Book 49965, Page 441, Official Records of said County; thence North 89° 59’ 20” East along last said parallel line, being also the Southerly line of said 3.00 acre parcel, 328.34 feet to a point in the Westerly line of that certain Parcel “E”, as described in deed dated October 1, 1954, from Santa Fe Land Improvement Company to the Atchison, Topeka and Santa Fe Railway Company, recorded October 20, 1954, as Instrument No. 3604, in Book 45888, Page 319, Official Records, said Westerly line being parallel with and distant Easterly 777.23 feet, measured at right angles, from the Westerly line of said Parcel 2; thence South 0° 00’ 20” East along last said parallel line, 133.00 feet to a point in a line that is parallel with and distant Southerly 133.00 feet, measured at right angles, from the Southerly line of said 3.00 acre parcel; thence South 89° 59’ 20” West along last said parallel line, 328.34 feet, more or less, to a point in a line that is parallel with and distant Easterly 448.89 feet, measured at right angles, from the Westerly line of said Parcel 2; thence North 0° 00’ 20” West along last said parallel line, 133.00 feet, more or less, to the point of beginning.

Except all natural gas contained in or under or that may be produced from said land, but with no surface rights together with the exclusive right to drill for and produce such natural gas from said land by whipstocking or directional drilling or other subsurface operations conducted from surface locations on other land, and the exclusive right to use the subsurface of said land for the purpose of injecting natural gas therein for storage and for repressuring the formations underlying said land but without the right of surface entry in any manner for the purpose of discovering or extracting such natural gas as conveyed to Standard Oil Company of California, a corporation, by deed recorded July 27, 1943, in Book 20145, Page 298, Official Records.

Also except all oil, hydrocarbon and mineral substances, if any, except natural gas, contained in or under or that may be produced from said land, but with no surface rights together with all those certain rights reserved by and unto the first party in that certain


deed recorded in Book 20145, Page 298, Official Records, but without the right of surface entry for the purpose of extracting any such oil, hydrocarbon and mineral substances nor for any other purpose, as conveyed to Chanslor-Canfield Midway Oil Company, a Corporation, by deed recorded September 7, 1945, in Book 22243, Page 336, Official Records.

Assessor’s Parcel Number: 4138-006-011


11493 Sunset Hills Road, Reston, VA (UNISYS CORP.)

All that certain lot or parcel of land situate, lying and being in Fairfax County, Virginia and being more particularly described as follows:

Parcel No. 1:

Block 6, Section 913, Reston, as the same is duly dedicated, platted and recorded among the Land Records of Fairfax County, Virginia in Deed Book 5695 at page 176.

Parcel No. 2:

TOGETHER WITH that non-exclusive easement for ingress and egress created by that certain Easement Agreement dated November 13, 1978, and recorded December 4, 1979, in Deed Book 5368 at page 578.


3701 Doolittle Drive, Redondo Beach, CA (NORTHROP SPACE & MISSION SYSTEMS)

Parcel A:

Lot 4 of Tract No. 43672, in the City of Redondo Beach, County of Los Angeles, State of California, as per map recorded in Book 1058, Pages 4 through 6 inclusive of Maps, in the Office of the County Recorder of said County.

Except therefrom all oil, gas and other hydrocarbon substances and all minerals lying within and under said land, without the right to go upon the surface of said land, or within 100 feet below the surface thereof for the purpose of exploring for, developing or producing any of said substances, as reserved by Santa Fe Land Improvement Company, a California Corporation, in the deed recorded December 6, 1955, as Instrument No. 1607, in Book 49710, Page 372, of Official Records.

Parcel B:

An appurtenant easement for surface drainage purposes over the Westerly 259.00 feet of the Easterly 449.00 feet of the Northerly 5.00 feet of the Southerly 239.00 feet of Lot 3 of said Tract No. 43672.

Parcel C:

An appurtenant easement for ingress and egress purposes over the Northerly 12.50 feet of the Easterly 449.00 feet of said Lot 3 of said Tract No. 43672.

Parcel D:

An appurtenant easement for underground electrical distribution purposes over those certain strips of land, all lying within Lots 2 and 3 of said Tract No. 43672, described as follows:

The Northerly 6.00 feet of said Lot 2.

Also the Easterly 6.00 feet of the Westerly 362.89 feet of said Lot 2.

Also the Easterly 6.00 feet of the most Westerly 15.00 feet of Lot 3 of said Tract No. 43672.

Also the Northwesterly 6.00 feet of said Lot 3.

Parcel E:

An appurtenant easement for fire line purposes over a strip of land 6.00 feet in width, lying within Lots 2, 3, 5, 6 and 7 of said Tract No. 43672, the centerline of said strip being described as follows:

Beginning at the Southwest corner of said Tract No. 43672; thence South 89° 58’ 57” East 319.00 feet to the true point of beginning; thence North 00° 01’ 33” East parallel with the Easterly line of said Tract No. 43672, 689.06 feet to the Southerly line of Lot 4 of said Tract No. 43672.


Also, beginning at the Southeast corner of Lot 5 of said Tract No. 43672; thence North 89° 58’ 27” West 840.83 feet to the true point of beginning; thence North 00° 01’ 00” East 232.93 feet; thence South 89° 58’ 57’ East 350.00 feet; thence North 00° 01’ 00” East 10.00 feet; thence South 89° 58’ 57” East 416.00 feet; thence South 00° 01’ 00” West 10.00 feet; thence South 89° 58’ 57” East 74.86 feet to the Easterly line of said Tract No. 43672.

Parcel F:

An appurtenant easement for telephone purposes over a strip of land 6.00 feet in width, lying within Lots 2, 3, 5 and 7 of said Tract No. 43672, the centerline of said strip being described as follows:

Beginning at the Northwest corner of Lot 2 of said Tract No. 43672; thence South 00° 01’ 00” West 204.15 feet to the true point of beginning; said point lying on the Westerly line of said Lot 2, also, lying along a curve concave to the Northwest having a radius of 36.00 feet and to which point a radial line bears South 68° 32’ 34” East; thence Northeasterly 13.47 feet along said curve through a central angle of 21° 26’ 17”; thence North 00° 01’ 00” East 85.60 feet to the beginning of a curve concave to the Southeast having a radius of 36.00 feet and to which beginning a radial line bears North 89° 59’ 00” West; thence Northeasterly 56.55 feet along said curve through a central angle of 90° 00’ 08”; thence South 89° 58’ 19” East 147.69 feet to the beginning of a curve concave to the Northwest having a radius of 20.00 feet and to which beginning a radial line bears South 00° 01’ 41” West; thence Northeasterly 20.00 feet along said curve through a central angle of 57° 17’ 45” to the beginning of a non-tangent curve concave to the Southeast having a radius of 153.00 feet and to which beginning a radial line bears North 57° 16’ 04” West; thence Northeasterly 51.00 feet along said curve through a central angle of 19° 05’ 55” to the beginning of a non-tangent curve concave to the Northwest having a radius of 196.00 feet and to which beginning a radial line bears South 50° 25’ 49” East; thence Northeasterly 138.57 feet along said curve through a central angle of 40° 30’ 26”; thence North 00° 01’ 33” East 145.44 feet to a point lying on that certain Northerly course shown as North 44° 59’ 00” West 127.99 feet of Lot 3 of said Tract No. 43672.

Also, beginning at the Southeast corner of Lot 5 of said Tract No. 43672; thence North 89° 58’ 27” West along the Southerly line of said Lot 5, 24.85 feet to the true point of beginning; thence North 00° 01’ 33” East 269.81 feet to the Northerly line of said Lot 5.

Also, beginning at the Southeast corner of Lot 5 of said Tract No. 43672; thence North 89° 58’ 27” West along the Southerly line of Lots 5, 6 and 7 of said Tract No. 43672, 838.40 feet to the true point of beginning; thence North 00° 01’ 33” East 239.69 feet to the Northerly line of Lot 7 of said Tract No. 43672.


Parcel G:

A License as set forth in an Assignment and Assumption of Leases from Massachusetts Mutual Life Insurance Company, a Massachusetts Corporation to Trinet Essential Facilities X, Inc., a Maryland Corporation, recorded February 9, 1995, as Instrument No. 95-227337, Official Records.


5200 Sheila Street, Commerce, CA (UNIFIED WESTERN GROCERS)

Parcel A:

Parcels 2 and 3 of Parcel Map No. 11171, in the City of Commerce, County of Los Angeles, State of California, as per map filed in Book 113, Page 7 of Parcel Maps, in the Office of the County Recorder of said County.

Except therefrom that portion of Parcel 3 described as follows:

Beginning at the most Westerly corner of said Parcel 3; thence along the Northwesterly line of said Parcel North 22° 23’ 00’ East 361.13 feet; thence leaving said Northwesterly line South 67° 37’ 12” East 396.81 feet to a point on the Southeasterly line of said Parcel 3; said point being distant North 22° 16’ 55” East 360.65 feet from the most Southerly corner of said Parcel; thence along said Southeasterly line South 22° 16’ 55” West 360.65 feet to the most Southerly corner of said Parcel; thence along the Southwesterly line of said Parcel North 67° 41’ 22” West 397.44 feet to the point of beginning.

Said land is also known as Parcel “A” on Record of Survey filed in Book 139, Page(s) 23 and 24 of Record of Survey, in the Office of the County Recorder of said County.

Also excepting therefrom the entire mineral estate in the property described lying not less than 500 feet beneath the natural surface, for purposes of this reservation the mineral estate shall include all substances which have been discovered or which may in the future be discovered upon or under the property described, which are now or may in the future be valuable, and which are now or may be in the future enjoyed through extraction from the property described, without limiting the generality of the foregoing, the mineral estate shall include all forms of geothermal energy, all coal, all gases, all hydrocarbon substances, all fissionable materials, all metallic minerals, and all non-metallic minerals.

Notwithstanding ownership of the mineral estate, neither grantor nor it successors or assigns shall have the right to enter upon the surface of the property described for the purpose of extracting any constituents of the mineral estate grantor reserves the right, on behalf of itself, its successor and assigns, (1) to extract the constituents of the mineral estate from the property described by means of wells, shafts, tunnels, or other subsurface accesses which may be constructed, drilled or dug on or from other land and which may penetrate into the property described below a depth of 500 feet, and (2) to excavate, construct, maintain, and operate subsurface facilities below a depth of 500 feet of the property described for the extraction of the constituents of the mineral estate so long as the subsurface facilities do not unreasonably interfere with the use and enjoyment of the surface estate in the property described, as reserved by Santa Fe Pacific Realty Corporation, successor by merger with Santa Fe Land Improvement Company, in Deed recorded August 15, 1989 as Instrument no. 89-1309080, Official Records.


Parcel B:

An easement for landscaping, utilities, and open space on, over and across a strip of land 10.00 feet in width by 174.25 feet in length as shown on Parcel Maps No. 11171 as per map filed in Book 113, Page 7, of Parcel Maps.

Assessor’s Parcel Number: 6335-007-021


1150 South Columbia Drive, Campbellsville, KY (AMAZON)

BEGINNING at an iron pin, set this survey, on the southeast side of the railroad right-of-way corner of the H.E. Dowell property (Deed Book 50, Page 431);

Thence with the lines of said Dowell property and with an existing fence line as follows: South 37 degrees 23 minutes 38 seconds East 1692.00 feet to an iron pin, set this survey; South 23 degrees 45 minutes 33 seconds East 321.06 feet to an iron pin, set this survey; South 14 degrees 20 minutes 18 seconds East 1377.05 feet to an iron pin, set this survey, North 60 degrees 26 minutes 42 seconds East 186.80 feet to an iron pin, set this survey, in the line of said Dowell property, corner of the Floyd Sallee property (Deed Book 176, Page 640);

Thence with the line of said Sallee property and then with the line of the Mabel M. Fox property (Deed Book 163, Page 197) South 01 degree 55 minutes 53 seconds East 900.00 feet to an iron pin, set this survey in an existing fence line, said iron pin being in the line of said Fox property and being a new division corner in the Tommy E. Dowell property (Deed Book 157, Page 565 and Deed Book 186, Page 598);

Thence with new division lines in said Dowell property as follows: North 42 degrees 32 minutes 25 seconds West 3334.36 feet to an iron pin, set this survey; North 51 degrees 00 minutes 34 seconds East 450.00 feet to an iron pin, set this survey; North 36 degrees 48 minutes 20 seconds West 500.00 feet to an iron pin, set this survey, on the southeast side of old Columbia Road (Ky. Hwy. 3183), said iron pin being a new division corner in said Dowell property;

Thence with the southeast side of old railroad right-of-way as follows: North 46 degrees 52 minutes 57 seconds East 73.57 feet, North 37 degrees 58 minutes 11 seconds East 747.25 feet to the Beginning containing 72.89 acres, more or less.

THERE BEING EXCEPTED from the above property the following tract which was conveyed to Tommy E. Dowell and his wife, Sue S. Dowell, by Union Underwear Company, Inc. by deed dated May 18, 1994, and recorded in Deed Book 192, Page 174, in the Office of the Taylor County Court Clerk;

BEGINNING at an iron pin corner of the Union Underwear Company, Inc. Property (Deed Book 186, Page 135); and the Tommy E. Dowell Property (Deed Book 186, Page 598);

THENCE North 51 degrees 00 minutes 34 seconds East 100 feet to an iron stake in the line of said Union Underwear Company, Inc. Property and the Tommy E. Dowell property this being a new division corner in said Union Underwear Company, Inc. Property;

THENCE with a new division line in said Union Underwear Company, Inc. Property South 04 degrees 14 minutes 04 seconds West 136.97 feet to an iron pin in the said Union Underwear Company, Inc. Property this being another new division corner in said Union Underwear Company, Inc. Property and the line of said Tommy E. Dowell Property;

THENCE with said Union Underwear Company, Inc. Property and said Tommy E. Dowell Property North 42 degrees 32 minutes 25 seconds West 100 feet to the beginning containing 0.114 acres more or less;


THERE FURTHER BEING EXCEPTED from the above property the following tract which was conveyed to Commonwealth of Kentucky, for the use and benefit of the Transportation Cabinet,

Bureau of Highways by Union Underwear Company, Inc. by deed dated May 3, 1994, and recorded June 10, 1994, in Deed Book 192, Page 203, in the Office of the Taylor County Court Clerk;

BEGINNING at a point in the existing right-of-way line 19.08 feet right of proposed KY 3183 station 36 + 84.14;

THENCE with the existing right-of-way line North 27 degrees 03 minutes 53 seconds East 15.17 feet to a point in the existing right-of-way line 19.19 feet; right of proposed KY 3183 station 36+ 99.32;

THENCE with the existing right-of-way line 66.69 feet along an arc to the right, having a radius of 2521.48 feet, the chord of which is North 27 degrees 24 minutes 22 seconds East, 66.69 feet to a point in the grantor West property line 19.30 feet right of proposed KY 3183 station 39+ 66.45;

THENCE with the grantors West property line North 39 degrees 41 minutes 46 seconds East 134.27 feet to a point in the proposed right-of-way line 43.50 feet right of proposed KY 3183 station 39 + 00.00;

THENCE with the proposed right-of-way line South 28 degrees 12 minutes 54 seconds West, 196.88 feet to a point in the proposed right-of-way line 45.00 feet right of proposed KY 3183 station 37 + 00.00;

THENCE with the proposed right-of-way line South 26 degrees 38 minutes 54 seconds West, 28.80 feet to a point in the grantors South property line 45.00 feet right of proposed KY 3183 station 36 + 71.20;

THENCE with the South property line North 36 degrees 49 minutes 04 seconds West, 28.97 feet to the point of beginning.

The above described parcel contains 0.093 acres (4,070 square feet), more or less.

BEING the same property conveyed to Carlsen Investments, LLC, a California limited liability company, Carl D. Panattoni, a married man, as his sole and separate property, Carl D. Panattoni and Mary Jane Panattoni, husband and wife, as community property, and Rieger Investments, LLC, a Delaware limited liability company, by deed from Valley Holdings, Inc. dated September 8, 1999, and recorded in Deed Book 217, Page 309, in the office of the Taylor County Court Clerk.

Said property is also described as follows:

Beginning at an existing iron pin, corner of the Campbellsville Housing and Redevelopment Authority property (Deed Book 192, Page 178) and also corner of the Tommy E. Dowell property (Deed Book 230, Page 107); thence with the lines of said Dowell property as follows: South 37 degrees 23 minutes 38 seconds East 1692.00 feet to an existing iron pin; South 23 degrees 45 minutes 33 seconds East 321.06 feet to an existing iron pin; South 14 degrees 20 minutes 18 seconds East 1377.05 feet to an existing iron pin; North 60 degrees 26 minutes 42


seconds East 186.80 feet to an existing iron pin in the line of said Dowell property, corner of the John Patrick Pierce, Jr. property (Deed Book 221, Page 52); thence with the line of said Pierce property and then with the line of the Leonard Bryant property (Deed Book 221, Page 46); South 01 degree 55 minutes 52 seconds East 900.00 feet to an existing iron pin in the line of said Bryant property and being a corner of the Tommy E. Dowell property (Deed Book 157, Page 565; Deed Book 186, Page 598; Deed Book 192, Page 174);

THENCE with the lines of said Dowell property as follows: North 42 degrees 32 minutes 25 seconds West 3234.36 feet to an iron pin (set this survey); North 04 degrees 14 minutes 04 seconds East 136.97 feet to an iron pin (set this survey); North 51 degrees 00 minutes 34 seconds East 350.00 feet to an existing iron pin; North 36 degrees 48 minutes 20 seconds West 465.76 feet to an existing iron pin on the southeast side of South Columbia Avenue (right-of-way varies), corner of said Dowell property; thence with the southeast side of said Columbia Avenue as follows: North 26 degrees 37 minutes 18 seconds East 29.27 feet; North 28 degrees 11 minutes 18 seconds East 93.48 feet to an existing iron pin on the southeast side of said South Columbia Avenue, corner of the City of Campbellsville property (old railroad right-of-way, deed not recorded); thence with the line of said City of Campbellsville property and then with the line of the Campbellsville Housing and Redevelopment Authority property North 37 degrees 58 minutes 11 seconds East 708.10 feet to the beginning containing 72.741 acres, more or less.


EXHIBIT C

Legal Description of Harborside Property

ALL that certain lot, parcel or tract of land, situate and lying in the City of Jersey City, County of Hudson and State of New Jersey being more particularly described as follows:.

PARCEL ONE:

Beginning at a point on the southerly side of Second Street Extension (52’ wide) said point being the following two (2) courses along said southerly side of Second Street Extension (52’ wide) as extended, from its intersection with the easterly side of Hudson Street (62’ wide) as extended, and running; thence

a. South 83 degrees 50 minutes 02 seconds East 195.11 feet to a bend; thence

b. South 84 degrees 47 minutes 48 seconds East 102.62 feet to a point of beginning and running; thence

 

  1. South 84 degrees 47 minutes 48 seconds East 35.65 feet along the southerly side of Second Street Extension (52’ wide) to a point of curvature; thence

 

  2. Along a curve to the right having a radius of 50.00 feet, an arc length of 60.93 feet (chord which bears South 49 degrees 53 minutes 06 seconds East 57.23 feet) to a point of reverse curvature; thence

 

  3. Along a curve to the left having a radius of 60.00 feet, an arc length of 160.03 feet along the easterly terminus of Second Street Extension (chord which bears North 88 degrees 37 minutes 11 seconds East 116.64 feet) to a point on curve, thence

 

  4. South 83 degrees 50 minutes 02 seconds East 98.17 feet to a point; thence

 

  5. South 06 degrees 09 minutes 58 seconds West 23.06 feet to a point on curve; thence

 

  6. Southerly along a curve to the right having a radius of 502.36 feet, an arc length of 195.70 feet (chord which bears South 00 degrees 42 minutes 02 seconds West 194.47 feet) to a point on curve; thence

 

  7. North 87 degrees 59 minutes 06 seconds West 204.55 feet to a point; thence

 

  8. North 75 degrees 59 minutes 06 second West 120.02 feet to a point; thence

 

  9. North 08 degrees 00 minutes 54 seconds East 231.23 feet to the point of beginning.

Being known as proposed Lot 35.01 in Block 15 as shown on a certain map entitled “Proposed Subdivision of Lots 35 & 36 in Block 15 and Lots 6 & 18 in Block 10 prepared for Mack-Cali Realty Corp. in the City of Jersey City, Hudson County, New Jersey” prepared by John Zanetakos Associates, Inc., dated January 30, 2001 and labeled Job No. 00-7628-300, and filed in the Hudson County Clerk’s office on August 29, 2001 as map number 3813.

TOGETHER WITH the easements granted to American Financial Exchange, L.L.C. in the Cross Reciprocal Easement Agreement (“CREA”) between and among American Financial Exchange, L.L.C., Plaza VIII & IX Associates, L.L.C., and Cali Harborside (Fee) Associates, L.P., dated September 29, 2003 and recorded on October 7, 2003 in the Hudson County Register’s office in Deed Book 7147, at page 157; as such easements are defined and described therein:

 

   

“Plaza X Storm Water Easement” in, to, under and within the “Plaza 8/9 Storm Water Easement Area”


   

“Plaza X Communication Easement” in, to, under and within the “Plaza 8/9 Communication Easement Area”

 

   

“Temporary Plaza X Communication Easement” in, to, under and within the “Temporary Communication Easement Area”

 

   

“Plaza X Water Easement” in, to, under and within the ‘Plaza 8/9 Water Main Easement Area”

 

   

“Plaza X Vehicular Easement” over and across the “Plaza 8/9 Vehicular Easement Area”

 

   

“Plaza X Pedestrian Easement” over and across the “Plaza 8/9 Pedestrian Easement Area”

 

   

“Plaza X Parking Easement” over, on, along and across the “Plaza 8/9 Parking Easement Areas”

PARCEL TWO:

Beginning at a point in the dividing line between Lot 48 in Block 15 as shown on the City of Jersey City Tax Assessment to the south and Lot 30 in Block 15 (Tax Map) to the north, said point of beginning being S 83°50’02” E, 48.53 feet along the dividing line between Lots 48 and 30 in Block 15 (Tax Map) from its intersection with the easterly line of Second Street Extension and running; thence

 

  1. N 06°09’58” E 1.66 feet to a point; thence

 

  2. S 83°54’00” E 50.74 feet to a point; thence

 

  3. S 05°35’27” W 23.12 feet to a point on curve; thence

 

  4. Southerly along a curve to the right having a radius of 694.85 feet an arc length of 136.45 feet, a central angle of 11°15’06” and a chord which bears S 04°19’57” E 136.23 feet to a point of compound curvature; thence

 

  5. Southerly along a curve to the right having a radius of 395.13 feet, an arc length of 60.77 feet, a central angle of 08°48’42” and a chord which bears S 05°41’57” W 60.71 feet to a point on curve; thence

 

  6. N 87°59’06” W 8.16 feet along the easterly extension of the dividing line between Lots 48 and 49 in Block 15 (Tax Map); thence the following three (3) courses along the easterly line of Lot 48 in Block 15 (Tax Map)

 

  7. Northerly along a curve to the left having a radius of 502.36 feet, an arc length of 195.70 feet, a central angle of 22°19’ 15” and a chord which bears N 00°42’02” E 194.47 feet to a point on curve; thence

 

  8. N 06°09’58” E 23.06 feet to a point on curve; thence

N 83°50’02” W 49.64 feet to a point, the point and place of beginning


EXHIBIT D

Mezzanine Minimum Release Amount

 

   

Property

  

Location

  

Mezz A iStar

Release Price

  

Mezz B iStar

Release Price

  

Total Mezz

Release Price

  Amazon.com, Inc.    Campbellsville, KY    2,015,982    928,711    2,944,693
  Avis Budget Group, Inc.    Parsippany, NJ    2,845,636    1,310,911    4,156,547
  CEVA Freight, LLC    Various    3,714,059    1,710,971    5,425,031
  Crawford & Company    Plantation, FL    3,411,662    1,571,665    4,983,327
  Equinix Operating Co., Inc.    El Segundo, CA    2,946,435    1,357,347    4,303,782
  FedEx Ground Package System    Richfield, OH    1,550,755    714,393    2,265,148
*   Northrop Grumman IT, Inc.    Tyson’s Corner, VA       21,196,564    21,196,564
  Nokia Siemens Networks US LLC    Irving, TX    4,156,024    1,914,574    6,070,598
  Nortel Networks, Inc.    Richardson, TX    620,302    285,757    906,059
  Northrop Grumman Space & Mission Systems    Redondo Beach, CA    1,783,369    821,552    2,604,921
  Spectrum Brands, Inc.    Dixon, IL    1,550,755    714,393    2,265,148
  Unified Western Grocers, Inc.    Commerce, CA    1,849,276    851,914    2,701,190
  Unisys Corporation    Reston, VA    2,434,686    1,121,597    3,556,283
  Wellpoint Health Networks Inc.    Thousand Oaks, CA    2,171,058    1,000,150    3,171,208
                   
  Total       31,050,000    35,500,500    66,550,500
                   
 

*  If Northrop Transfers occurs.


EXHIBIT E

Closing Checklist

(attached hereto)


EXHIBIT F

Legal Description of Northrop VA Property

7555 Colshire Drive, McLean, VA (NORTHROP GRUMMAN)

Parcel B-1-A2, containing 11.7931 acres, more or less, WESTGATE INDUSTRIAL PARK, as set forth in and as shown on plat attached to Deed of Resubdivision recorded in Deed Book 12845 at Page 103, among the land records of Fairfax County, Virginia, and being more particularly described by metes and bounds as set forth below:

BEGINNING AT A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE, ROUTE 6471, WIDTH VARIES, SAID POINT BEING A NORTHWESTERLY CORNER OF THE REMAINDER OF LOT 3A, WESTGATE INDUSTRIAL PARK.

THENCE DEPARTING THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE AND WITH THE WESTERLY LINE OF THE REMAINDER OF LOT 3A S 13° 06’ 39” W 59.90 FEET TO A POINT;

77.77 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 88.00 FEET, A DELTA OF 50° 37’ 53”, AND A CHORD BEARING AND DISTANCE OF S 12° 12’ 18” E 75.26 FEET TO A POINT; S 37° 31’ 14” E 187.25 FEET TO A POINT; S 52° 28’ 46” W 20.00 FEET TO A POINT; 53.41 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 68.00 FEET, A DELTA OF 45° 00’ 00”, AND A CHORD BEARING AND DISTANCE OF S 29° 58’ 45” W 52.04 FEET TO A POINT; S 07° 28’ 46” W 80.49 FEET TO A POINT; S 37° 31’ 14” E 81.58 FEET TO A POINT; S 52° 28’ 46” W 421.54 FEET TO A POINT ON THE NORTHERLY LINE OF FAIRFAX COUNTY PARK AUTHORITY, SAID POINT BEING THE SOUTHWESTERLY CORNER OF THE REMAINDER OF LOT 3A.

THENCE WITH THE NORTHERLY AND EASTERLY LINES OF FAIRFAX COUNTY PARK AUTHORITY N 66° 15’ 44” W 823.27 FEET TO A POINT; N 33° 31’ 06” E 102.53 FEET TO A POINT; N 42° 19’ 21” E 74.39 FEET TO A POINT, SAID POINT BEING THE SOUTHEASTERLY CORNER OF PARCEL B-1-A1.

THENCE DEPARTING THE EASTERLY LINE OF FAIRFAX COUNTY PARK AUTHORITY AND WITH THE EASTERLY LINE OF PARCEL B-1-A1 N 84° 46’ 30” E 112.47 FEET TO A POINT; 50.31 FEET ALONG THE ARC OF A CIRCLE CURVING TO RIGHT, HAVING A RADIUS OF 50.00 FEET, A DELTA OF 57° 39’ 17” , AND A CHORD BEARING AND DISTANCE OF S 66° 23’ 52” E 48.22 FEET TO A POINT; S 37° 34’ 13” E 39.49 FEET TO A POINT; N 52° 25’ 47” E 234.57 FEET TO A POINT; N 37° 34’ 06” W 59.95 FEET TO A POINT; 13.09 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT HAVING A RADIUS OF 62.50 FEET, A DELTA OF 12° 00’ 13”, AND A CHORD BEARING AND DISTANCE OF N 31° 34’ 05” W 13.07 FEET TO A POINT; N 25° 34’ 05” W 3.78 FEET TO A POINT; N 52° 25’ 54” E 275.90 FEET TO A POINT; 93.21 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT, HAVING A RADIUS OF 99.50 FEET, A DELTA OF 53° 40’ 28”, AND A CHORD BEARING AND DISTANCE OF N 79° 16’ 08” E 89.84 FEET TO A POINT; N 51° 24’ 46” E 86.08 FEET TO A POINT; N 77° 22’ 06” E 100.10 FEET TO A POINT ON THE AFOREMENTIONED SOUTHERLY RIGHT-OF-WAY COLSHIRE DRIVE.


THENCE WITH THE SOUTHERLY RIGHT-OF-WAY OF COLSHIRE DRIVE S 38° 35’ 14” E 8.90 FEET TO A POINT; 17.27 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE RIGHT, HAVING A RADIUS OF 40.00 FEET, A DELTA OF 24° 44’ 39” , AND A CHORD BEARING AND DISTANCE OF S 26° 12’ 55” E 17.14 FEET TO A POINT; S 13° 50’ 35” E 89.89 FEET TO A POINT; 64.96 FEET ALONG THE ARC OF A CIRCLE CURVING TO THE LEFT, HAVING A RADIUS OF 73.00 FEET, A DELTA OF 50° 59’ 13” AND A CHORD BEARING AND DISTANCE OF S 39° 20’ 12” E 62.84 FEET TO THE POINT OF BEGINNING AND CONTAINING 11.7931 ACRES OF LAND, MORE OR LESS.

TOGETHER WITH a non-exclusive, perpetual easement to use the Colshire Drive extension for ingress and egress in the areas identified as “Access Easement” and one (1) curb cut onto the Colshire Drive extension in the area identified as “Curb Cut” both on Exhibit 2(a) as set forth in as shown on plat attached to Cross Easement Agreement recorded in Deed Book 10990 at Page 691, the easement for ingress and egress is modified by Instrument recorded in Deed Book 15343 at page 1576, among the aforesaid land records.

TOGETHER WITH a non-exclusive 25’ utility easement as set forth in and as shown on plat identified as Exhibit 2c to Cross Easement Agreement recorded in Deed Book 10990 at Page 691, among the aforesaid land records.

TOGETHER WITH a ten foot (10’) retaining wall maintenance easement as set forth in Cross Easement Agreement recorded in Deed Book 12887 at Page 1271, among the aforesaid land records.


Schedule 4.1(A)-1

Borrower’s U.S. taxpayer identification number is: 27-2866421


Schedule 4.1(A)-2

The attached organizational chart shows each Person directly owning (and/or indirectly owing five percent (5%) or more of) the ownership interests in Borrower, Holdco and Property Owners.


Schedule 4.1(A)-3

The principal place of business and chief executive office of Borrower, Intervening Entities and Property Owners is set forth below:

c/o Dividend Capital Total Realty Operating Partnership LP

518 17th Street, Suite 1700

Denver, Colorado 80202

 


Schedule 4.1(A)-4

Attached is a list of the correct legal name, jurisdiction of formation, organization number, direct Subsidiaries, indirect Subsidiaries, type of entity (e.g., corporation, limited partnership, limited liability company, etc.), of each member of the Intervening Entities and Property Owners and also, in the case of the Property Owners, the Property owned by such Property Owner.

(attached hereto)


Please see Exhibit A of the Loan Agreement for a list of the Property owned by each Property Owner.

 

Name of Entity

  

Jurisdiction of Formation / Type of

Entity

  

Organizational

Number

TRT NOIP Fixed Mezz Holdco LLC    Delaware Limited Liability Company    4831228
TRT NOIP Fixed Real Estate Holdco LLC    Delaware Limited Liability Company    4831234
TRT NOIP Fixed CA LP Holdco LLC    Delaware Limited Liability Company    4831235
TRT NOIP Corporate Center Drive - Newbury Park GP LLC    Delaware Limited Liability Company    4831286
TRT NOIP Doolittle - Redondo Beach GP LLC    Delaware Limited Liability Company    4831288
TRT NOIP Sheila - Commerce GP LLC    Delaware Limited Liability Company    4831289
TRT NOIP Maple - El Segundo GP LLC    Delaware Limited Liability Company    4831292
TRT NOIP CEVA Lease Holdco LLC    Delaware Limited Liability Company    4831237
TRT NOIP Eagle GP LLC    Delaware Limited Liability Company    4831297
TRT NOIP Connection - Irving LP LLC    Delaware Limited Liability Company    4831279
TRT NOIP Connection - Irving GP LLC    Delaware Limited Liability Company    4831293
TRT NOIP Glenville - Richardson LP LLC    Delaware Limited Liability Company    4831283
TRT NOIP Glenville - Richardson GP LLC    Delaware Limited Liability Company    4831295
TRT NOIP Sunset Hills - Reston LLC    Delaware Limited Liability Company    4831417


Schedule 4.1(A)-5

The attached organizational chart correctly identifies each Person directly owning (and/or indirectly owning 5% or more of) the Harborside Property and Harborside Owner.


Schedule 4.11

Insurance Policies

(attached hereto)


Schedule 4.12

A “Special Purpose Bankruptcy Remote Entity” is an entity which is a limited liability company which at all times since its formation and at all times thereafter (and whose Organizational Documents require compliance with the following) :

(i) not guarantee any obligation of any Person, including any Affiliate, or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person;

(ii) not engage, directly or indirectly, in any business other than the ownership of the Pledged Interests ;

(iii) not incur, create or assume any indebtedness or liabilities other than, with respect to Borrower only, the Loan and, to the extent such unsecured trade payables constitute Permitted Indebtedness, unsecured trade payables incurred in the ordinary course of its business that are related to the ownership of the Interests;

(iv) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except (1) for Holdco and (2) that Borrower may invest in those investments permitted under the Loan Documents;

(v) not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets;

(vi) not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities);

(vii) except for Holdco and the Subsidiaries (as such term is defined in the Holdco LLC Agreement), not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity;

(viii) own any asset or property other than the Interests and incidental personal property necessary for the ownership of the Interests; or

(ix) maintain books and records and bank accounts separate from those of any other Person;

(x) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets;

(xi) comply with all limited liability company formalities necessary to maintain its separate existence;

(xii) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;

(xiii) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any


financial statement of any other Person; except that Borrower’s assets may be included in a consolidated financial statement of its Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;

(xiv) prepare and file its own tax returns separate from those of any Person to the extent required by applicable law, and pay any taxes required to be paid by applicable law;

(xv) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates;

(xvi) except as contemplated by the Loan Documents, not enter into any transaction with any Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;

(xvii) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name;

(xviii) except as contemplated by the Loan Documents, not commingle its assets or funds with those of any other Person;

(xix) except as contemplated by the Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person;

(xx) correct any known misunderstanding as to its separate identity;

(xxi) except as contemplated by the Loan Documents, not permit any Affiliate to guarantee or pay its obligations;

(xxii) not make loans or advances to any other Person;

(xxiii) pay its liabilities and expenses out of and to the extent of its own funds;

(xxiv) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;

(xxv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow from the Interests after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to Borrower;

(xxvi) cause the managers, officers, employees, agents and other representatives of Borrower to act at all times with respect to Borrower consistently and in furtherance of the foregoing and in the best interests of Borrower;


(xxvii) not take any action if, as a result of such action, it would have been or would be required to register as an investment company under the Investment Company Act of 1940, as amended; and

(xxviii) such Person’s Organizational Documents incorporate provisions that require such Person to be a Special Purpose Bankruptcy Remote Entity.

“Independent Person” shall mean a natural person that (i) is engaged by Borrower from an Approved Independent Manager Provider, (ii) who is, and continues to be during the term of engagement by Borrower, as Independent Manager employed by and in good standing with such Approved Independent Manager Provider and (iii) who is not at the time of initial appointment as Independent Manager and has not been at any time during the five (5) years preceding such initial appointment and shall not be at any time while serving as Independent Manager of Borrower: (i) a stockholder, director, manager (with the exception of serving as an Independent Manager of Borrower), officer, trustee, employee, partner, member, attorney or counsel of Borrower, or any Affiliate of either of them; (ii) a creditor, customer, supplier, or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate; (iii) a Person controlling or under common control with any Person excluded from serving as Independent Manager under (i) or (ii); or (iv) a member of the immediate family by blood or marriage of any Person excluded from serving as Independent Manager under (i) or (ii). (As used above, “Approved Independent Manager Provider” means each of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company and Lord Securities Corporation; provided, that, (a) the foregoing shall only be deemed Approved Independent Manager Providers to the extent acceptable to the rating agencies and (b) additional national providers of professional Independent Managers may be deemed added to the foregoing hereunder to the extent approved in writing by the Lender and the rating agencies.)


Schedule 11.5

Addresses for Notice

 

If to Borrower:    TRT NOIP Fixed Mezz Holdco LLC
   c/o Dividend Capital Total Realty Operating Partnership LP
   518 17th Street, Suite 1700
   Denver, Colorado 80202
   Attention: Guy Arnold, President
   Telephone: 303-228-2200
   Facsimile: 303-577-9797
With a copy to:    TRT NOIP Fixed Mezz Holdco LLC
   c/o Dividend Capital Total Realty Operating Partnership LP
   518 17th Street, Suite 1700
   Denver, Colorado 80202
   Attention: Joshua J. Widoff, Senior Vice President and General Counsel
   Telephone: 303-597-0483
   Facsimile: 303-869-4602
With a copy to:    Greenberg Traurig, LLP
   200 Park Avenue
   New York, New York 10166
   Attn: Robert Ivanhoe, Esq.
   Telephone: (212) 801-9200
   Facsimile: (212) 801-6400
If to Lender:    iStar Financial Inc.
   1114 Avenue of the Americas
   New York, New York 10036
   Attn: Chief Operating Officer
   Loan No.: M00153300
   Telephone: 212-930-9400
   Facsimile: 212-930-9494
With a copy to:    iStar Financial Inc.
   1114 Avenue of the Americas
   New York, New York 10036
   Attn: Nina B. Matis, Esq./General Counsel
   Loan No.: M00153300
   Telephone: 212-930-9406
   Facsimile: 212-930-9492


With a copy to:    iStar Asset Services Inc.
   180 Glastonbury Boulevard, Suite 201
   Glastonbury, Connecticut 06033
   Attn: President
   Loan No.: M00153300
   Telephone: 860-815-5900
   Facsimile: 860-815-5901
With a copy to:    Katten Muchin Rosenman LLP
   525 West Monroe Street
   Chicago, Illinois 60661-3693
   Attn: Kenneth M. Jacobson, Esq.
   and
   George P.L. Pierce, Esq.
   Loan No.:     M00153300
   Reference:   208972-00731
   Telephone: 312-902-5445 (KMJ)
                       312-902-5541 (GPLP)
   Facsimile:   312-577-8646 (KMJ)
                       312-577-8893 (GPLP)

 

Exhibit 10.5

Record And Return To:

Kelley Drye & Warren LLP

200 Kimball Drive

Parsippany, New Jersey 07054

Attn: Paul A. Keenan, Esq.

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING

AMERICAN FINANCIAL EXCHANGE, L.L.C.,

PLAZA X URBAN RENEWAL ASSOCIATES L.L.C. and

PLAZA X LEASING ASSOCIATES L.L.C.

Mortgagor

to

NEW YORK LIFE INSURANCE COMPANY,

Mortgagee

Dated as of: June 25, 2010

Premises:

Harborside Plaza X

3 Second Street

City of Jersey City, Hudson County, New Jersey


TABLE OF CONTENTS

 

         Page
ARTICLE 1     COVENANTS AND AGREEMENTS    12
  1.01     Payment, Performance and Security    12
  1.02     Payment of Taxes, Assessments, etc    12
   

1.02A.

  Impositions    12
   

1.02B.

  Installments    12
   

1.02C.

  Receipts    12
   

1.02D.

  Evidence of Payment    12
   

1.02E.

  Payment by Mortgagee    13
   

1.02F.

  Change in Law    13
   

1.02G.

  Joint Assessment    13
   

1.02H.

  Permitted Contests    13
   

1.02I.

  No Lease Default    14
 

1.03  

  Insurance    14
   

1.03A.

  All Risk Coverage    14
   

1.03B.

  Additional Coverage    15
   

1.03C.

  Separate Insurance    15
   

1.03D.

  Insurers; Policies    16
   

1.03E.

  Mortgagee’s Right to Secure Coverage    16
   

1.03F.

  Damage or Destruction    16
   

1.03G.

  Transfer of Interest in Policies    17
   

1.03H.

  Mortgagor’s Use of Proceeds    17
 

1.04  

  Escrow Payments    19
 

1.05  

  Care and Use of the Premises    19
   

1.05A.

  Maintenance and Repairs    19
   

1.05B.

  Standard of Repairs    20
   

1.05C.

  Removal of Equipment    20
   

1.05D.

  Compliance With Laws and Insurance    20
   

1.05E.

  Hazardous Materials    20
   

1.05F.

  Compliance With Instruments of Record    23
   

1.05G.

  Alteration of Secured Property    23
   

1.05H.

  Parking    23
   

1.05I.

  Entry on Secured Property    23
   

1.05J.

  No Consent to Alterations or Repairs    23
   

1.05K.

  Preservation of Lien; Mechanic’s Liens    23
   

1.05L.

  Use of Secured Property by Mortgagor    24
   

1.05M.

  Use of Secured Property by Public    24
   

1.05N.

  Management    24
   

1.05O.

  Permitted Contests    24
 

1.06  

  Financial Information    25
   

1.06A.

  Financial Statements    25

 

-i-


TABLE OF CONTENTS

(continued)

 

         Page
 

1.06B.

  Right to Inspect Books and Records    25
 

1.07  

  Condemnation    25
   

1.07A.

  Mortgagee’s Right to Participate in Proceedings    25
   

1.07B.

  Application of Condemnation Award    26
   

1.07C.

  Reimbursement of Costs    27
   

1.07D.

  Existing Obligations    27
 

1.08  

  Leases    27
   

1.08A.

  Performance of Lessor’s Covenants    27
   

1.08B.

  Notice of Default    28
   

1.08C.

  Representations Regarding Leases    28
   

1.08D.

  Covenants Regarding Leases    28
   

1.08E.

  Application of Rents    29
   

1.08F.

  Indemnity Against Unapproved Lease Modifications and Amendments    30
 

1.09  

  Assignment of Leases, Rents, Income, Profits and Cash Collateral    30
   

1.09A.

  Assignment; Discharge of Obligations    30
   

1.09B.

  Entry Onto Secured Property; Lease of Secured Property    31
   

1.09C.

  License to Manage Secured Property    31
   

1.09D.

  Delivery of Assignments    31
   

1.09E.

  Indemnity    31
 

1.10  

  Further Assurances    31
   

1.10A.

  General; Appointment of Attorney-in-Fact    31
   

1.10B.

  Statement Regarding Obligations    32
   

1.10C.

  Additional Security Instruments    32
   

1.10D.

  Security Agreement    32
   

1.10E.

  Preservation of Mortgagor’s Existence    34
   

1.10F.

  Further Indemnities    34
   

1.10G.

  Absence of Insurance    34
   

1.10H.

  Lost Note    34
 

1.11  

  Prohibition on Transfers, Liens or Further Encumbrances    35
   

1.11A.

  Continuing Ownership and Management    35
   

1.11B.

  Prohibition on Transfers, Liens or Further Encumbrances    35
   

1.11C.

  Acceleration of Obligations    35
   

1.11D.

  Exercise of Purchase Option    36
 

1.12  

  Expenses    36
 

1.13  

  Material Agreements    36
   

1.13A.

  Performance by Mortgagor    36
   

1.13B.

  Performance by Mortgagee    36

 

-ii-


TABLE OF CONTENTS

(continued)

 

         Page
   

1.13C.

  Notice of Default    37
   

1.13D.

  No Waiver    37
   

1.13E.

  No Surrender or Modification    37
   

1.13F.

  No Merger    37
ARTICLE 2     REPRESENTATIONS AND WARRANTIES    37
  2.01     Warranty of Title    37
 

2.02  

  Ownership of Additional or Replacement Improvements and Personal Property    38
 

2.03  

  No Pending Material Litigation or Proceeding; No Hazardous Materials    38
   

2.03A.

  Proceedings Affecting Mortgagor    38
   

2.03B.

  Proceedings Affecting Secured Property    38
   

2.03C.

  No Hazardous Material    38
   

2.03D.

  No Litigation Regarding Hazardous Material    39
 

2.04  

  Valid Organization, Good Standing and Qualification of Mortgagor; Other Organizational Information    39
 

2.05  

  Authorization; No Legal Restrictions on Performance    40
 

2.06  

  Compliance With Laws    40
 

2.07  

  Tax Status    40
 

2.08  

  Absence of Foreign or Enemy Status; Absence of Blocked Persons; Foreign Corrupt Practices Act    40
 

2.09  

  Federal Reserve Board Regulations    41
 

2.10  

  Investment Company Act and Public Utility Holding Company Act    41
 

2.11  

  Exempt Status of Transactions Under Securities Act and Representations Relating Thereto    41
 

2.12  

  ERISA    42
 

2.13  

  Material Agreements    42
ARTICLE 3     DEFAULTS    42
 

3.01  

  Events of Default    42
ARTICLE 4     REMEDIES    44
 

4.01  

  Acceleration, Foreclosure, etc    44
   

4.01A.

  Foreclosure    45
   

4.01B.

  Partial Foreclosure    45
   

4.01C.

  Entry    45
   

4.01D.

  Collection of Rents, etc    46
   

4.01E.

  Receivership    46
   

4.01F.

  Specific Performance    46
   

4.01G.

  Recovery of Sums Required to be Paid    46
   

4.01H.

  Other Remedies    46

 

-iii-


TABLE OF CONTENTS

(continued)

 

         Page
   

4.01I.

  Compliance with Laws    47
 

4.02  

  No Election of Remedies    47
 

4.03  

  Mortgagee’s Right to Release, etc    47
 

4.04  

  Mortgagee’s Right to Remedy Defaults, etc    47
 

4.05  

  Waivers    48
 

4.06  

  Prepayment    48
ARTICLE 5     MISCELLANEOUS    49
 

5.01  

  Non-Waiver    49
 

5.02  

  Sole Discretion of Mortgagee    50
 

5.03  

  Legal Tender    50
 

5.04  

  No Merger or Termination    50
 

5.05  

  Discontinuance of Actions    51
 

5.06  

  Headings    51
 

5.07  

  Notice to Parties    51
 

5.08  

  Successors and Assigns Included In Parties    52
 

5.09  

  Changes and Modifications    52
 

5.10  

  Applicable Law    52
 

5.11  

  Invalid Provisions to Affect No Others    52
 

5.12  

  Usury Savings Clause    52
 

5.13  

  No Statute of Limitations    53
 

5.14  

  Late Charges    53
 

5.15  

  Waiver of Jury Trial    53
 

5.16  

  Continuing Effectiveness    53
 

5.17  

  Time of Essence    53
 

5.18  

  Non-Recourse    53
 

5.19  

  Non-Business Days    56
 

5.20  

  Single Purpose Entity    56
 

5.21  

  Non-consolidation Opinion    58
 

5.22  

  Joint and Several    58
ARTICLE 6     LOCAL LAW PROVISIONS    58
 

6.01  

  Principals of Construction    58
 

6.02  

  Hazardous Substances    58
 

6.03  

  Continuing Enforcement of Mortgage    59
 

6.04  

  Freshwater Wetlands    59
 

6.05  

  Modification of Mortgage    59
 

6.06  

  No Credit for Tax Paid    59
 

6.07  

  Receipt of Copy    59

 

-iv-


MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (“ Mortgage ”), dated as of June 25, 2010, from AMERICAN FINANCIAL EXCHANGE, L.L.C. (“ AFE ”), PLAZA X URBAN RENEWAL ASSOCIATES L.L.C. (“ Plaza X Urban Renewal ”) and PLAZA X LEASING ASSOCIATES L.L.C. (“ Plaza X Leasing ”; AFE, Plaza X Urban Renewal and Plaza X Leasing are referred to herein individually and collectively, as the context may require, as “ Mortgagor ”), each a New Jersey limited liability company, having an office at c/o Dividend Capital, 518 17th Street, Suite 1700, Denver, Colorado 80202, to NEW YORK LIFE INSURANCE COMPANY (“ Mortgagee ”), a New York mutual insurance company, having an office at 51 Madison Avenue, New York, New York 10010-1603.

Mortgagor has executed and delivered to Mortgagee a Promissory Note (“ Note ”), dated as of June 25, 2010, payable to the order of Mortgagee in the original principal sum of One Hundred Twenty-Five Million and No/100 Dollars ($125,000,000.00), lawful money of the United States of America. The Note is secured by this Mortgage and the terms, covenants and conditions of the Note are hereby incorporated herein and made a part hereof.

In consideration of the sum of Ten Dollars ($10.00) paid and other good and lawful consideration, the receipt and sufficiency of which are hereby acknowledged and in order to secure the Obligations (as hereinafter defined), Mortgagor hereby mortgages, grants, assigns, releases, transfers, pledges and sets over to Mortgagee and grants to Mortgagee a security interest in the following property:

GRANTING CLAUSE ONE

All that tract or parcel of land (“ Land ”) more particularly described in Schedule A hereto, together with (a) the leasehold estate in and to the Land created pursuant to that certain Lease dated as of October 6, 2000, as amended by a certain First Amendment to Ground Lease dated as of September 29, 2003, between AFE, as lessor, and Plaza X Urban Renewal, as lessee (as the same has been or may hereafter be amended from time to time, the “ Ground Lease ”), a memorandum of which Ground Lease was recorded in the Office of the Hudson County Register of Deeds on October 7, 2003 in Book 7147 , Page 318 , and all right, title and interest of AFE and Plaza X Urban Renewal in, to and under said Ground Lease, and (b) the subleasehold estate in and to the Land created pursuant to that certain Lease dated as of October 6, 2000, as amended by a certain First Amendment to Lease dated as of September 29, 2003, between Plaza X Urban Renewal, as landlord, and Plaza X Leasing, as tenant, (as the same has been or may hereafter be amended from time to time, the “ Master Lease ”), a memorandum of which Master Lease was recorded in the Office of the Hudson County Register of Deeds on October 7, 2003 in Book 7147 , Page 326 , and all right, title and interest of Plaza X Urban Renewal and Plaza X Leasing in, to and under said Master Lease.


GRANTING CLAUSE TWO

All buildings, structures and improvements (collectively, “ Improvements ”) now or hereafter located on the Land, including all of Mortgagor’s machinery, apparatus, equipment and fixtures attached to, or used or procured for use in connection with the operation or maintenance of, any Improvement, all of Mortgagor’s refrigerators, shades, awnings, venetian blinds, screens, screen doors, storm doors, storm windows, stoves, ranges, curtain fixtures, partitions, attached floor coverings and fixtures, apparatus, equipment or articles used to supply sprinkler protection and waste removal, laundry equipment, furniture, furnishings, appliances, office equipment, elevators, escalators, tanks, dynamos, motors, generators, switchboards, communication equipment, electrical equipment, television and radio systems, heating, plumbing, lifting and ventilating apparatus, air-cooling and air conditioning apparatus, gas and electric fixtures, fittings and machinery and all of Mortgagor’s other personal property and equipment of every kind and description, excluding trade fixtures and personal property of any Lessee (as hereinafter defined), unless such trade fixtures or personal property become the property of Mortgagor upon expiration or termination of the term of the Lease in question, and all accessions, renewals and replacements thereof and all articles in substitution therefor. Whether or not any of the foregoing are attached to the Land or any of the Improvements in any manner, all such items shall be deemed to be fixtures, part of the real estate and security for the Obligations. The Land and Improvements are herein collectively called “ Premises ”. To the extent any of the Improvements are not deemed real estate under the laws of the State, they shall be deemed personal property and this grant shall include all of Mortgagor’s right, title and interest in, under and to such personal property and all other personal property now or hereafter attached to or located upon the Premises or used or useable in the management, maintenance or operation of the Improvements or the activities conducted on the Premises, including all computer hardware and software, but excluding trade fixtures and personal property of any Lessee, unless such personal property becomes the property of Mortgagor upon expiration or termination of the Lease in question, and all accessions, renewals and replacements thereof and all articles in substitution therefor (collectively, “ Personal Property ”).

GRANTING CLAUSE THREE

All now or hereafter existing easements and rights-of-way and all right, title and interest of Mortgagor, in and to any land lying within the right-of-way of any street, opened or proposed, adjoining the Premises, any and all sidewalks, alleys and strips and gores of land, streets, ways, passages, sewer rights, waters, water courses, water rights and powers, estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, development rights, covenants, conditions, restrictions, credits and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to, or above or below the Premises, whether now or hereafter existing.

GRANTING CLAUSE FOUR

All intangible rights, interests and properties of Mortgagor relating to the Premises or any part thereof, and necessary or desirable for the continued ownership, use, operation, leasing or management thereof, whether now or hereafter existing, including any trademarks, servicemarks, logos or trade names relating to the Premises or by which the Premises or any part thereof may

 

2


be known and any other franchises or other agreements relating to services in connection with the use, occupancy, or maintenance of the Premises, instruments, actions or rights in action and all intangible property and rights relating to the Premises.

GRANTING CLAUSE FIVE

All accounts receivable, insurance policies, contract rights, interests, rights under all oil, gas and mineral leases and agreements and all benefits arising therefrom, and all other claims, both at law and in equity, relating to the Premises, which Mortgagor now has or may hereafter acquire.

GRANTING CLAUSE SIX

All estate, interest, right, title and other claim or demand which Mortgagor now has or may hereafter acquire in any and all awards or payments relating to the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Premises, including all awards resulting from a change of grade of any street and awards for severance damages, together, in all cases, with all interest thereon.

GRANTING CLAUSE SEVEN

All proceeds of, and any unearned premiums on, insurance policies covering all or any part of the Premises, including the right to receive and apply the proceeds of all insurance or judgments related to the Premises, or settlements made in lieu thereof.

GRANTING CLAUSE EIGHT

All estate, interest, right, title and other claim or demand which Mortgagor now has or may hereafter acquire against anyone with respect to any damage to all or any part of the Premises, including damage arising or resulting from any defect in or with respect to the design or construction of all or any part of the Improvements.

GRANTING CLAUSE NINE

All deposits or other security or advance payments, including rental payments, made by or on behalf of Mortgagor to others in connection with the Obligations or the ownership or operation of all or any part of the Premises, including any such deposits or payments made with respect to (a) Impositions (as hereinafter defined), (b) insurance policies, (c) utility service, (d) cleaning, maintenance, repair or similar services, (e) refuse removal or sewer service, (f) rental of equipment, if any, used by or on behalf of Mortgagor, and (g) parking or similar services or rights.

GRANTING CLAUSE TEN

All remainders, reversions or other estates in the Premises or any part thereof.

 

3


GRANTING CLAUSE ELEVEN

All right, title and interest of Mortgagor in and to all management contracts, permits, certificates, licenses, approvals, contracts, entitlements and authorizations, however characterized, now or hereafter issued or in any way furnished for the acquisition, construction, development, operation and use of the Land, the Improvements or the Leases, including the Tax Exemption Documents, building permits, environmental certificates, licenses, certificates of operation or occupancy, warranties and guaranties, except, in each case, to the extent that such mortgage, grant, assignment, transfer or pledge is restricted by the terms of such management contract, permit, certificate, license, approval, contract, entitlement or authorization and such restriction is enforceable under applicable law.

GRANTING CLAUSE TWELVE

All right, title and interest of Mortgagor in and to all easements, roads, streets, ways, sidewalks, alleys, passages, sewer rights, other utility rights, encroachment rights, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to, or arising under that certain Cross-Reciprocal Easement Agreement among AFE, Plaza VIII & IX Associates, L.L.C. and Cali Harborside (Fee) Associates L.P. dated September 29, 2003 and recorded in the Office of the Hudson County Register of Deeds on October 7, 2003 in Book 7147, Page 157 (the “ Easement Agreement ”) whether now or hereafter existing.

GRANTING CLAUSE THIRTEEN

All proceeds, products, replacements, additions, substitutions, renewals and accessions of any of the foregoing, including personal property acquired with cash proceeds.

TO HAVE AND TO HOLD THE SECURED PROPERTY UNTO MORTGAGEE AND ITS SUCCESSORS AND ASSIGNS. Until the occurrence of and after the timely curing or waiver of an Event of Default, Mortgagee shall permit Mortgagor to possess and enjoy the Secured Property and to enforce the Leases and to receive, retain, use, distribute, collect and enjoy, the Rents therefrom in accordance with the terms of the Loan Instruments. The conditions of these presents is such that if Mortgagor shall pay, or cause to be paid, the Obligations as and when the same shall come due and payable, and shall observe, perform and discharge its obligations under this Mortgage, Mortgagee shall release and reconvey the Secured Property unto and at the expense of Mortgagor.

DEFINITIONS AND INTERPRETATION

As used in this Mortgage, the following terms shall have the meanings specified below:

Affiliate ” of any specified Person shall mean any other Person that, directly or indirectly, is Controlling or Controlled by or under common Control with such specified Person.

Assignment ” shall mean the Assignment of Leases, Rents, Income and Cash Collateral, dated as of the date hereof, from Mortgagor, as assignor, to Mortgagee, as assignee.

 

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Cash Management Agreement ” shall mean the Cash Management Agreement, dated as of the date hereof, by and between Mortgagor and Mortgagee.

Code ” shall mean the Uniform Commercial Code of the State.

Condemnation Proceedings ” shall have the meaning set forth in Section 1.07A .

Control ” means, when used with respect to any specific Person, (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities, beneficial interests, by contract or otherwise, including as an officer or director of such specific Person, or (b) the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial interest of a Controlled Person. The definition is to be construed to apply equally to variations of the word “Control” including “Controlled,” “Controlling” or “Controlled by.”

Debt Coverage Ratio ” shall mean, for any period, a fraction, the numerator of which shall equal the projected net operating income of the Premises for such period (including proceeds from any business interruption or “loss of rents” insurance), and the denominator of which shall equal the aggregate of the principal and interest for such period with respect to (A) the indebtedness due pursuant to the Loan Instruments, and (B) subordinate indebtedness, if any exists. Such calculation shall be as determined by Mortgagee based on the calculation above. This definition alone does not permit any subordinate financing if not otherwise expressly permitted under the Loan Instruments.

Easement Agreement ” shall have the meaning set forth in Granting Clause Twelve.

Environmental Claim ” shall mean any asserted claim or demand, of any kind or nature, by any Person, for any actual or alleged Environmental Damage, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, ordinance or regulation, common law or otherwise.

Environmental Damage ” shall mean any and all claims, judgments, damages (including consequential and punitive damages), losses, penalties, interest, fines, liabilities (including strict liability), obligations, responsibilities, encumbrances, liens, costs and expenses, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, including attorneys’, experts’ and consultants’ fees and disbursements, including:

 

  (a) those relating to any investigation, defense or settlement of any claim, suit, administrative proceeding or investigation of any kind or any directive of any Governmental Agency;

 

  (b) those relating to damages for personal injury, or injury to property including natural resources, occurring in, on, under or about the Secured Property, including lost profits and the cost of demolition and rebuilding of any improvements on real property;

 

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  (c) diminution in the value of the Secured Property, and damages for the loss, or restriction on the use or adverse impact on the marketing, of the Secured Property or any part thereof;

 

  (d) loss of the priority of the lien of this Mortgage due to the imposition of a lien against the Secured Property; and

 

  (e) those incurred in connection with the investigation, cleanup, remediation, removal, abatement, containment, closure, restoration, monitoring work or other cure of any violation of an Environmental Requirement required by any Governmental Agency or reasonably necessary to make full economic use of the Secured Property or in connection with any other property, including the performance of any pre-remedial studies and investigations and post remedial monitoring and cure, or any action to prevent a Release or threat of Release or to minimize the further Release of any Hazardous Material so it does not migrate or endanger or threaten to endanger public health or the environment.

Environmental Requirements ” shall mean any and all Legal Requirements (as hereinafter defined) relating to the protection of the environment, health or safety, including:

 

  (a) all Legal Requirements pertaining to reporting, licensing, permitting, investigation, remediation or removal of, or pertaining to Releases or threatened Releases of, Hazardous Materials, chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature, including Releases or threatened Releases into the air, soil, surface water, ground water or land;

 

  (b) all Legal Requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature; and

 

  (c) all Legal Requirements pertaining to industrial hygiene or the protection of the health and safety of employees or the public.

Equity Collateral ” shall have the meaning ascribed to the word “Collateral” in the Pledge Agreement.

ERISA ” shall have the meaning set forth in Section 2.12 .

Event of Default ” shall have the meaning set forth in Section 3.01 .

Governmental Agency ” shall mean any government, quasi-governmental or government sponsored enterprise, legislative body, commission, board, regulatory authority, bureau, administrative or other agency, court, arbitrator, grand jury or any other public body or entity or instrumentality, whether domestic, foreign, federal, state, county or municipal.

 

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Ground Lease ” shall have the meaning set forth in Granting Clause One.

Guarantor ,” shall mean (a) any guarantor of all or any portion of the Obligations, (b) any indemnitor (other than Mortgagor) under the Environmental Indemnity Agreement of even date herewith, executed by such indemnitor and Mortgagor in favor of Mortgagee or any subsequent Environmental Indemnity Agreement or similar agreement in favor of Mortgagee, and (c) any guarantor under the Guaranty or any subsequent Guaranty in favor of Mortgagee.

Guaranty ” shall mean the Guaranty of even date herewith, executed by Dividend Capital Total Realty Trust Inc., a Maryland corporation, and Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, in favor of Mortgagee.

Hazardous Materials ” shall mean any substance:

 

  (a) the presence of which requires notification, investigation or remediation under any Environmental Requirement;

 

  (b)

which is or becomes designated, defined, classified or regulated as “hazardous”, “toxic”, “noxious”, “waste”, “pollutant”, “contaminant” or other similar term, or which requires remediation or is regulated under any present or future Environmental Requirement, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq .), Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), Federal Clean Air Act (42 U.S.C. Section 7401 et seq .), Federal Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq .), Federal Clean Water Act (33 U.S.C. Section 1251 et seq .), Federal Environmental Pesticide Control Act (7 U.S.C. Section 136 et seq .), Federal Toxic Substances Control Act (15 U.S.C. Section 2601 et seq .), Federal Safe Drinking Water Act (42 U.S.C. Sections 300(f), et seq .), New Jersey Industrial Site Recovery Act, as amended, N.J.S.A. 13:1K-6 et seq., the Spill Compensation and Control Act, as amended, N.J.S.A., 58:10-23.11 et seq., the New Jersey Underground Storage of Hazardous Substances Act, as amended, N.J.S.A. 58:10A-21 et. seq., the Safe Drinking Water Act, as amended, N.J.S.A. 58:12A-1 et. seq., the Toxic Catastrophe Prevention Act N.J.S.A. 13:K-19, et. seq., the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1, et. seq., the Pollution Prevention Act, N.J.S.A. 13:1D-35, et seq., the Air Pollution Control Act, N.J.S.A. 26:2C-1, et seq., the Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq., the Sanitary Landfill Closure and Contingency Fund Act, N.J.S.A. 13:1E-100, et seq., the Solid Waste Utility Control Act, N.J.S.A. 48:13A-1, et seq., the Water Pollution Control Act, N.J.S.A. 58:10A-1, et seq.,

 

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the Flood Hazard Control Act, N.J.S.A. 58:16A-50, et seq., the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1, et seq., the Coastal Area Facility Review Act, N.J.S.A. 13:19-1, et seq., the Wetlands Act of 1970, N.J.S.A. 13:9A-1, et seq., the Waterfront and Harbor Facilities Act, N.J.S.A. 12:5-1, et seq., the Noise Control Act, N.J.S.A. 13:1G-1, et seq., and the Pesticide Control Act, N.J.S.A. 13:1F-1, et seq., and any other federal, state, local or foreign law or ordinance which is presently in effect or hereafter enacted relating to environmental matters; any rules and regulations promulgated under any of the foregoing; and any and all amendments to the foregoing;

 

  (c) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes regulated by any Governmental Agency;

 

  (d) the presence of which on the Secured Property causes or threatens to cause a nuisance relating to the Secured Property or adjacent properties or poses or threatens to pose a hazard relating to the Secured Property or adjacent properties or to the health or safety of Persons on or about the Secured Property or adjacent properties;

 

  (e) which contains asbestos, gasoline, diesel fuel or other petroleum hydrocarbons, volatile organic compounds, polychlorinated biphenyls (PCBs) or urea formaldehyde foam insulation;

 

  (f) which contains or emits radioactive particles, waves or material, including radon gas; or

 

  (g) which is or constitutes a part of an underground storage tank.

Hazardous Material Claims ” shall have the meaning set forth in Section 1.05E(4) .

Impositions ” shall have the meaning set forth in Section 1.02A .

Improvements ” shall have the meaning set forth in Granting Clause Two.

Increased Rate ” shall have the meaning set forth in the Note.

Indemnified Claims ” shall have the meaning set forth in Section 1.05E(1) .

Independent Director ” shall mean a natural Person who (a) is not at the time of initial appointment, or at any time while serving in such capacity, and is not, and has never been, and will not while serving as Independent Director be: (i) a stockholder, director (with the exception of serving as the Independent Director of Mortgagor), officer, employee, partner, member, manager, attorney or counsel of Mortgagor, equity owners of Mortgagor or any Guarantor or any Affiliate of Mortgagor or any Guarantor; (ii) a customer, supplier or other person who derives any of its purchases or revenues from its activities with Mortgagor or any Guarantor, equity

 

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owners of Mortgagor or Guarantor or any Affiliate of Mortgagor or any Guarantor; (iii) a Person Controlling or under common Control with any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person; or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person and (b) has (i) prior experience as an independent director or independent manager for a corporation, a trust or limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers thereof before such corporation, trust or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three years of employment experience with one or more nationally-recognized companies that provides, inter alia, professional independent directors or independent managers in the ordinary course of their respective business (a “ Professional Independent Director ”) and is an employee of such a company or companies at all times during his or her service as an Independent Director. A natural Person who satisfies the foregoing definition except for being (or having been) the independent director or independent manager of a “special purpose entity” that is an Affiliate of Mortgagor (provided such Affiliate does not or did not own a direct or indirect equity interest in an Mortgagor) shall not be disqualified from serving as an Independent Director, provided that such natural Person satisfies all other criteria set forth above and that the fees such individual earns from serving as independent director or independent manager of affiliates of Mortgagor or in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. A natural Person who satisfies the foregoing definition other than subparagraph (a)(ii) shall not be disqualified from serving as an Independent Director if such individual is a Professional Independent Director and such individual complies with the requirements of the previous sentence.

Land ” shall have the meaning set forth in Granting Clause One.

Lease ” and “ Leases ” shall have the respective meanings set forth in Section 1.08A .

Lease Guaranty Payment ” shall mean any payment, fee or penalty paid by any guarantor of any Lease, whether by reason of a default or pursuant to the terms of any guaranty under such Lease or otherwise.

Lease Termination Fee ” shall mean any payment, fee or penalty paid by a tenant in connection with the cancellation or termination of such tenant’s Lease, whether by reason of such tenant’s default or pursuant to the terms of such Lease or otherwise.

Legal Requirements ” shall mean all present or future laws, statutes, permits, approvals, plans, authorizations, guidelines, franchises, ordinances, restrictions, orders, rules, codes, regulations, judgments, decrees, injunctions or requirements of all Governmental Agencies or any officers thereof, including any Board of Fire Underwriters.

Lessee ” shall have the meaning set forth in Section 1.08A .

 

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Loan ” shall mean the mortgage loan evidenced by the Note and secured by this Mortgage.

Loan Instruments ” shall mean the Note, this Mortgage, the Assignment, the Pledge Agreement, the Cash Management Agreement, the Guaranty, the Side Letter and each other instrument now or hereafter given to evidence, secure, indemnify, guaranty or otherwise assure or provide for the payment or performance of the Obligations or otherwise executed by Mortgagor in connection with the Loan.

Make-Whole Amount ” shall have the meaning set forth in the Note.

Master Lease ” shall have the meaning set forth in Granting Clause One.

Material Agreement ” shall mean each of the Ground Lease, the Master Lease, the Schwab Lease and the Tax Exemption Documents.

Maturity Date ” shall have the meaning set forth in the Note.

Mortgagee’s Architect ” shall mean a licensed architect or registered engineer approved by Mortgagee.

Non-Recourse Exceptions ” shall have the meaning set forth in Section 5.18 .

Note ” shall have the meaning set forth in the second introductory paragraph of this Mortgage.

Obligations ” shall mean and include all indebtedness, obligations, covenants, agreements and liabilities of Mortgagor to Mortgagee, including all obligations to pay interest, the Make-Whole Amount and all charges and advances, whether direct or indirect, existing, future, contingent or otherwise, due or to become due, pursuant to or arising out of or in connection with the Note, this Mortgage, the Assignment or any other Loan Instrument, all modifications, extensions and renewals of any of the foregoing and all expenses and costs of collection or enforcement, including attorneys’ fees and disbursements incurred by Mortgagee in the collection or enforcement of any of the Loan Instruments or in the exercise of any rights or remedies pursuant to the Loan Instruments or applicable law.

Partial Foreclosure ” shall have the meaning set forth in Section 4.01B .

Person ” shall mean a corporation, a limited or general partnership, a limited liability company or partnership, a joint stock company, a joint venture, a trust, an unincorporated association, a Governmental Agency, an individual or any other entity similar to any of the foregoing.

Personal Property ” shall have the meaning set forth in Granting Clause Two.

Phase I ” shall mean that certain Environmental Assessment, dated May 25, 2010, prepared by EMG.

 

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Pledge Agreement ” shall mean the Pledge and Security Agreement, dated as of the date hereof, from the Pledgors, collectively as pledgor, to Mortgagee, as lender.

Pledgors ” shall mean TRT Harborside LLC, a Delaware limited liability company, and Plaza X Realty L.L.C., a New Jersey limited liability company.

Premises ” shall have the meaning set forth in Granting Clause Two.

Proceeds ” shall have the meaning set forth in Section 1.03F(2) .

Purchase Option ” shall have the meaning set forth in Section 1.11D .

Rents ” shall mean all rents, issues, profits, cash collateral, royalties, income and other benefits derived from the Secured Property or any part thereof (including benefits accruing from all present or future leases and agreements, including oil, gas and mineral leases and agreements).

Release ” shall mean any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the environment.

Schwab Lease ” shall mean that certain Amended and Restated Lease dated December 29, 2000 between Plaza X Leasing, as landlord, and Charles Schwab & Co., Inc., as tenant, as the same has been or may hereafter be amended from time to time.

Secured Property ” shall mean the Premises, the Personal Property and all other rights and interests described in the Granting Clauses of this Mortgage.

Side Letter ” shall mean the letter, dated as of the date hereof, from Mortgagee to Mortgagee relating to extensions of the Loan, Transfers and other matters.

State ” shall mean the State, Commonwealth or territory in which the Secured Property is located.

Tax Exemption Documents ” shall mean, collectively (a) that certain Contribution Agreement dated as of November 15, 2000 between AFE and the City of Jersey City, (b) that certain Project Employment & Contracting Agreement dated as of November 15, 2000 between Plaza X Urban Renewal and the City of Jersey City, (c) that certain Financial Agreement dated as of November 15, 2000, between Plaza X Urban Renewal and the City of Jersey City, (d) that certain Addendum to Financial Agreement effective as of November 15, 2000 between Plaza X Urban Renewal and the City of Jersey City, (e) that certain Amendment to Financial Agreement dated September 23, 2003 between Plaza X Urban Renewal and the City of Jersey City, (f) the Settlement Agreement and Release about to be entered into between Plaza X Urban Renewal and the City of Jersey City and (f) any other documents now or hereafter entered into by any Mortgagor in connection with a tax exemption pursuant to the Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 et seq., as any of the foregoing have been or may hereafter be amended from time to time.

Transfer ” shall have the meaning set forth in Section 1.11B .

 

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As used in this Mortgage (a) words such as “herein”, “hereof”, “hereto”, “hereunder” and “hereby” or similar terms refer to this Mortgage as a whole and not to any specific Section or provision hereof; (b) wherever the singular or plural number or the masculine, feminine or neuter gender is used, it shall include each other number or gender; and (c) the word “including” shall mean “including, without limitation,” and the word “includes” shall mean “includes, without limitation.”

ARTICLE 1

COVENANTS AND AGREEMENTS

Mortgagor hereby covenants and agrees as follows:

1.01 Payment, Performance and Security . Mortgagor shall pay when due the amount of, and otherwise timely perform, all Obligations. This Mortgage shall secure all Obligations.

1.02 Payment of Taxes, Assessments, etc .

1.02A. Impositions . Mortgagor shall pay when due and payable, before any fine, penalty, interest or cost for the nonpayment thereof may be added thereto, and without any right of offset or credit against any interest or other amounts payable to Mortgagee pursuant to this Mortgage or on the Note, all taxes, assessments, water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levies, vault taxes or charges, license and permit fees and other governmental charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever (including penalties, interest costs and charges accrued or accumulated thereon), which at any time may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect to, or become a lien on, the Secured Property or any part thereof, or any appurtenance thereto, including amounts payable by Mortgagor under the Tax Exemption Documents (all of the foregoing collectively, “ Impositions ” and individually, an “ Imposition ”).

1.02B. Installments . Notwithstanding anything to the contrary contained in Section 1.02A , if by law any Imposition, at the option of the taxpayer, may be paid in installments, and provided interest shall not accrue on the unpaid balance of such Impositions, Mortgagor may exercise the option to pay the same in installments and, in such event, shall pay such installments as the same become due and before any fine, penalty, interest or cost may be added thereto.

1.02C. Receipts . Mortgagor, upon request of Mortgagee, will furnish to Mortgagee within ten (10) days before the date when any Imposition would become delinquent, official receipts of the appropriate taxing authority, or other evidence reasonably satisfactory to Mortgagee, evidencing the payment thereof.

1.02D. Evidence of Payment . The bill, certificate or advice of nonpayment, issued by the appropriate official (designated by law either to make or issue the same or to receive payment of any Imposition) of the nonpayment of an Imposition shall be prima facie evidence that such Imposition is due and unpaid at the time of the making or issuance of such certificate, advice or bill. Mortgagor shall pay Mortgagee, on demand, all charges, costs and

 

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expenses of every kind including each tax service search fee or charge incurred by Mortgagee at any time or times during the term of this Mortgage in connection with obtaining evidence satisfactory to Mortgagee that the payment of all Impositions is current and that there is no Imposition due and owing or which has become or given rise to a lien on the Secured Property or any part thereof or any appurtenance thereto.

1.02E. Payment by Mortgagee . If Mortgagor shall fail to pay any Imposition in accordance with the provisions of this Section 1.02 , Mortgagee, at its option and at such time as it may elect, may pay such Imposition, but shall be under no obligation to do so. Mortgagor will repay to Mortgagee, on demand, any amount so paid by Mortgagee, with interest thereon at the Increased Rate from the date of such payment by Mortgagee to the date of repayment by Mortgagor. This Mortgage shall secure each such amount and such interest.

1.02F. Change in Law . In the event of the passage after the date of this Mortgage of any law deducting the Obligations from the value of the Secured Property or any part thereof for the purpose of taxation or resulting in any lien thereon, or changing in any way the laws now in force for the taxation of this Mortgage or the Obligations for state or local purposes, or the manner of the operation of any such taxes so as to affect the interest of Mortgagee, then, and in such event, Mortgagor shall bear and pay the full amount of such taxes, provided that if for any reason payment by Mortgagor of any such new or additional taxes would be unlawful or if the payment thereof would constitute usury or render the Loan or the Obligations wholly or partially usurious under any of the terms or provisions of the Note, this Mortgage or otherwise, Mortgagee may, at its option, declare all Obligations secured by this Mortgage, with interest thereon, to be immediately due and payable, or Mortgagee may, at its option, pay that amount or portion of such taxes as renders the Loan or the Obligations unlawful or usurious, in which event Mortgagor shall concurrently therewith pay the remaining lawful and non-usurious portion or balance of such taxes. Mortgagor waives any right it may have to a credit against interest due on the debt secured by this Mortgage for taxes paid.

1.02G. Joint Assessment . Mortgagor shall not suffer, permit or initiate the joint assessment of the Premises and the Personal Property, or any other procedure whereby personal property taxes and real property taxes shall be assessed, levied or charged to the Secured Property as a single lien.

1.02H. Permitted Contests . Notwithstanding anything herein to the contrary, if, and for so long as, Mortgagor is not in default pursuant to any of the Loan Instruments, Mortgagor shall have the right to contest the amount or the validity, in whole or in part, of any Imposition, by appropriate proceedings diligently conducted in good faith and without cost or expense to Mortgagee. Subject to the provisions of Section 1.02I and provided Mortgagor is in compliance with the provisions of the next sentence, Mortgagor may postpone or defer payment of such Imposition if Mortgagor, on or before the due date thereof, shall do one of the following: (1) deposit or cause to be deposited with Mortgagee a surety bond issued by a surety company of recognized responsibility acceptable to Mortgagee, guaranteeing and securing the payment in full of such Imposition, pending the determination of such contest, (2) deposit or cause to be deposited with Mortgagee an amount equal to one hundred percent (100%) of such Imposition or any balance thereof remaining unpaid, and from time to time, but not more frequently than quarterly, deposit amounts in order to keep on deposit at all such times an amount equal to one

 

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hundred percent (100%) of the Imposition remaining unpaid, or (3) furnish or cause to be furnished to Mortgagee other security reasonably satisfactory to Mortgagee. If such deposit is made or such security furnished and Mortgagor continues in good faith to contest the validity of such Imposition by appropriate legal proceedings which shall operate to prevent the collection of such Imposition so contested, the imposition of interest, fines or other penalties with respect to such Imposition and the sale of the Secured Property or any part thereof to satisfy such Imposition, Mortgagor shall have no obligation to pay such Imposition until such time as it has been finally determined to be a valid, due and payable Imposition. Upon termination of any such proceeding, or at any earlier time that Mortgagor shall have been adjudicated liable for the payment of such Imposition, Mortgagor shall pay in full the amount of such Imposition or part thereof as shall have been finally determined in such proceeding, together with all liabilities in connection therewith. If Mortgagor shall fail to pay in full the amount that has been finally determined, Mortgagee shall have the full power and authority to apply or require the application of any amounts that may have been deposited pursuant to this Section 1.02H to payment of any unpaid Imposition. However, Mortgagee shall not have any liability for application of, or failure to apply, any amount so deposited, except for Mortgagee’s intentional and willful failure to apply a deposited amount after Mortgagor shall have notified Mortgagee of such final decision and Mortgagor or the Person making such deposit shall have requested in writing the application of such amount to the payment of the particular Imposition with respect to which it was deposited. Mortgagee shall repay to Mortgagor, or as directed by Mortgagor, the remainder of any such deposit after payment in full of the related Imposition, unless Mortgagor shall be in default pursuant to any of the Loan Instruments. If a default then exists, Mortgagee may, in its discretion, apply all or any part of such remainder to the curing of such default. After the curing of all such defaults (and the payment in full of all then due and payable Impositions), Mortgagee shall pay the remainder of such surplus, if any, to Mortgagor. Mortgagor may contest matters under the Tax Exemption Documents by appropriate proceedings diligently conducted in good faith and without cost or expense to Mortgagee, provided that if such matter involves any disputed payment obligation of Mortgagor under the Tax Exemption Documents, Mortgagor shall deposit the disputed amount with Mortgagee in accordance with the provisions of this Section 1.02H .

1.02I. No Lease Default . Notwithstanding anything to the contrary contained herein, if contesting the validity or amount of any Imposition shall cause a breach of any of the terms, conditions or covenants required to be performed by Mortgagor as lessor under any Lease, Mortgagor shall not have the right to contest the same as provided in Section 1.02H , and Mortgagor shall pay such Imposition pursuant to Section 1.02A .

1.03 Insurance .

1.03A. All Risk Coverage . Mortgagor, at its sole cost and expense, shall keep the Improvements and the Personal Property insured against loss or damage by fire and against loss or damage by other risks now covered by “All Risk” insurance, in form and substance satisfactory to Mortgagee, and in an amount equal to at least one hundred percent (100%) of the full replacement cost of the Improvements and the Personal Property, including improvement work performed for tenants, without deduction for depreciation and with such other deductibles, if any, as are satisfactory to Mortgagee, in its discretion. Such insurance shall include an endorsement for demolition and increased cost of construction and an agreed amount

 

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endorsement for the estimated replacement cost. Mortgagor’s “All Risk” insurance policy shall not exclude from coverage any loss arising from the perils of terrorist acts or, in the alternative, Mortgagor shall maintain a separate insurance policy covering terrorist acts and, in either case, the coverage for damage caused by terrorist acts shall be on a 100% replacement cost basis with a deductible acceptable to Mortgagee (such insurance coverage shall be referred to herein as “ Terrorism Insurance ”). Mortgagor’s Terrorism Insurance coverage may be part of a blanket insurance policy provided that the blanket coverage (i) is acceptable to Mortgagee, in its discretion, (ii) contains an endorsement to the policy showing Mortgagee as a certificate holder and additional insured and (iii) contains a specific allocation of value and deductible related to the coverage on the property to be encumbered by the Mortgage and provides that such value and deductible may not be affected by any claims or other matters related to the other properties covered by the blanket policy.

1.03B. Additional Coverage . Mortgagor, at its sole cost and expense, shall at all times also maintain:

(1) Commercial general liability insurance against claims for bodily injury, personal injury or property damage, occurring in, on, under or about the Secured Property or in, on, under or about the adjoining streets, sidewalks and passageways; such insurance to be in amounts and in form and substance satisfactory to Mortgagee;

(2) Rent and/or business income insurance in an amount not less than one year’s aggregate rentals, including minimum rentals, escalation charges, percentage rents (based on sales projections acceptable to Mortgagee) and other additional rentals, and any other amounts payable by tenants and other occupants at the Secured Property pursuant to Leases or otherwise, which amount shall be increased from time to time upon the leasing of space at the Secured Property or upon each increase in such aggregate rentals;

(3) If the Improvements are located in a flood hazard area, flood insurance on the Improvements in an amount equal to the lesser of full replacement cost thereof or the maximum amount of insurance obtainable;

(4) Insurance, in such amounts as Mortgagee shall from time to time require, against loss or damage from leakage or explosion of steam boilers, air conditioning equipment, pressure vessels or similar apparatus, now or hereafter installed in or on the Secured Property; and

(5) Such other insurance and any replacements, substitutions or additions thereto as shall at any time be required by Mortgagee against other insurable hazards, including earthquake, war risk, terrorism, nuclear reaction or radioactive contamination, each in such amount as Mortgagee shall determine.

1.03C. Separate Insurance . Mortgagor shall not carry separate insurance, concurrent in kind or form and contributing in the event of loss with any insurance required hereunder. Mortgagor may, however, effect for its own account any insurance not required pursuant to the provisions of this Mortgage, but any such insurance effected by Mortgagor on the Secured Property, whether or not required pursuant to this Section 1.03 , shall be for the mutual benefit of Mortgagor and Mortgagee, as their respective interests may appear, and shall be subject to all other provisions of this Section 1.03 .

 

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1.03D. Insurers; Policies . All insurance provided for in this Section 1.03 shall be effected under valid and enforceable policies issued by financially responsible insurers, rated by A.M. Best as “A” or better and as having a class size of at least “X(10)” and authorized to do business in the State, with deductibles acceptable to Mortgagee and otherwise in form and substance acceptable to Mortgagee. An original (or certified) copy of all such policies shall be deposited with and held by Mortgagee and shall contain the standard non-contributory mortgagee clause in favor of Mortgagee and a waiver of subrogation endorsement, all in form and content satisfactory to Mortgagee. All such policies shall contain a provision that such policies will not be cancelled or materially amended (including any reduction in the scope or limits of coverage), without at least thirty (30) days’ prior written notice to Mortgagee. Not less than thirty (30) days prior to the expiration dates of the expiring policies theretofore furnished pursuant to this Section 1.03 , (so long as Mortgagor has been invoiced for such insurance premiums, but in any case to avoid lapse of such policies, originals (or certified copies)) of the policies bearing notations evidencing the full payment of the annual premium or accompanied by other evidence satisfactory to Mortgagee of such payment shall be delivered by Mortgagor to Mortgagee.

1.03E. Mortgagee’s Right to Secure Coverage . If Mortgagor fails to furnish to Mortgagee and keep in force the original policies of insurance required by this Section 1.03 , Mortgagee, at its option, may procure such insurance, which procurement, at Mortgagee’s further option, may be by the purchase of insurance policies or by the addition of the Secured Property to Mortgagee’s blanket policy. In the event that Mortgagee has exercised either of such options, promptly upon demand by Mortgagee, Mortgagor (i) will reimburse Mortgagee for all premiums on the policies purchased by Mortgagee or (ii) in the event Mortgagee has added the Secured Property to its blanket policy, will pay to Mortgagee an amount equal to the estimated cost of the insurance coverage which Mortgagee has added to its blanket policy had such coverage been obtained under a separate policy and not under a blanket policy, in either case, with interest thereon at the Increased Rate from the date Mortgagee pays such premiums to the date Mortgagor repays such premiums to Mortgagee in full. Until they are so repaid, this Mortgage shall secure the amount of such premiums and interest.

1.03F. Damage or Destruction . Upon the occurrence of any damage or casualty to the Secured Property or any part thereof, the following shall apply:

(1) Mortgagor shall give Mortgagee written notice of such damage or casualty as soon as possible, but not later than ten (10) days after the date such damage or casualty occurs.

(2) All proceeds of insurance (“ Proceeds ”) paid or to be paid pursuant to any of the policies maintained pursuant to this Mortgage shall be payable to Mortgagee. Mortgagor hereby authorizes and directs any affected insurer to make payment of the Proceeds directly to Mortgagee. Mortgagee may commingle, with other monies in Mortgagee’s possession, all Proceeds received by Mortgagee. All such Proceeds shall constitute additional security for the Obligations and Mortgagor shall not be entitled to the payment of interest thereon. So long as no Event of Default then exists, Mortgagor may settle, adjust or compromise all claims for loss, damage or destruction pursuant to any policy or policies of insurance provided that such claim does not exceed $1,000,000.00.

 

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(3) Mortgagee shall have the option, in its discretion, and without regard to the adequacy of its security hereunder, of applying all or part of the Proceeds to (a) the Obligations, whether or not then due, in such order as Mortgagee shall determine in accordance with applicable law, (b) the repair or restoration of the Secured Property, (c) reimburse Mortgagee for its actual costs and expenses in connection with the recovery of the Proceeds, if any, or (d) any combination of the foregoing.

(4) Nothing herein contained shall be deemed to excuse Mortgagor from repairing or maintaining the Secured Property as provided in Section 1.05 or restoring all damage or destruction to the Secured Property, regardless of whether there are Proceeds available or whether the Proceeds are sufficient in amount, and the application or release by Mortgagee of any Proceeds shall not cure or waive any Event of Default or notice of default pursuant to this Mortgage or invalidate any act done pursuant to such notice.

1.03G. Transfer of Interest in Policies . In the event of the foreclosure of this Mortgage or other transfer of title or assignment of the Secured Property in payment and performance, in whole or in part, of the Obligations, all right, title and interest of Mortgagor in and to all policies of insurance required by this Section 1.03 shall inure to the benefit of, and pass to the purchaser or grantee of the Secured Property. If, prior to Mortgagee’s receipt of the Proceeds, the Secured Property shall have been sold through the foreclosure of this Mortgage or other similar proceeding, Mortgagee shall have the right to receive the Proceeds to the extent that any portion of the Obligations are still unpaid after application of the proceeds of the foreclosure sale or similar proceeding, together with interest thereon at the Increased Rate, plus attorney’s fees and other costs and disbursements incurred by Mortgagee in connection with the collection of the Proceeds and in establishing the amount of and collecting the deficiency. Mortgagor hereby assigns, transfers and sets over to Mortgagee all of the Mortgagor’s right, title and interest in and to said sum. The balance, if any, shall be paid to Mortgagor, or as otherwise required by law.

1.03H. Mortgagor’s Use of Proceeds .

(1) Notwithstanding any provision herein to the contrary, but subject to the provisions of Section 1.03H(4) , in the event of any destruction to the Secured Property by fire or other casualty as to which the estimated cost of repair or restoration exceeds $1,000,000, the Proceeds shall be made available to Mortgagor for repair and restoration, after deducting therefrom and payment to Mortgagee of an amount equal to Mortgagee’s costs in connection with collection, review and disbursement of the Proceeds of such damage or casualty, provided that:

(a) The Proceeds are deposited with Mortgagee;

(b) No Event of Default shall have occurred and be continuing under the terms of any of the Loan Instruments;

(c) The insurer does not deny liability to any named insured;

 

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(d) Mortgagee is furnished with, and has approved (i) a complete, final set of plans and specifications for the work to be performed in connection with the repair or restoration, (ii) an estimate of the cost of repair and restoration, and (iii) a certificate of Mortgagee’s Architect as to such costs;

(e) The value, quality and condition of the Secured Property so repaired or restored shall be at least equal to that of the Secured Property prior to such damage or casualty;

(f) Mortgagor furnishes Mortgagee with evidence reasonably satisfactory to Mortgagee that all Improvements so repaired or restored and their use shall fully comply with all applicable (i) easements, covenants, conditions, restrictions or other private agreements or instruments of record affecting the Secured Property and (ii) Legal Requirements;

(g) If the estimated cost of such repair or restoration exceeds the Proceeds available, Mortgagor shall (i) furnish a bond of completion or provide other evidence satisfactory to Mortgagee of Mortgagor’s ability to pay such excess costs, or (ii) deposit with Mortgagee additional funds equal to such excess;

(h) Mortgagee shall have received written notice of damage or casualty from Mortgagor within ten (10) days after the date of such damage or casualty, which notice shall state the date of such damage or casualty, and shall contain a request to Mortgagee to make the Proceeds available to Mortgagor;

(i) Mortgagee shall have received a report or proof of claim from the insurer describing the damage or casualty and the insurer’s payment therefor;

(j) During and after the repair and restoration period, the aggregate monthly net income pursuant to rent or business income insurance and/or pursuant to all Leases remaining in full force and effect shall be in an amount sufficient to pay the monthly installments of principal and interest required to be paid on the Obligations, as well as all payments for taxes and insurance required pursuant to Section 1.04 , as estimated by Mortgagee; and

(k) the Debt Coverage Ratio is not less than 1.50.

(2) Mortgagee shall disburse the Proceeds during the course of repair or restoration upon (a) the certification of Mortgagee’s Architect as to the cost of the work done, (b) the conformity, as determined by Mortgagee, of the work to plans and specifications approved by Mortgagee, and (c) receipt of evidence of a title insurance company acceptable to Mortgagee that there are no liens arising out of the repair or restoration or otherwise. Notwithstanding the above, a portion of the Proceeds may be released prior to the commencement of repair or restoration to pay for items approved by Mortgagee in its discretion. Subject to satisfaction of the foregoing conditions, Mortgagee shall make such disbursements within ten (10) business days after a written request by Mortgagor. No payment made prior to the final completion of work shall exceed ninety percent (90%) of the value of the work performed from time to time, and at all times the undisbursed balance of the Proceeds remaining with Mortgagee must be at least sufficient to pay for the cost of completion of the work (as

 

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estimated by Mortgagee in its discretion), free and clear of liens. Mortgagee shall make final payment after receipt of a certification of Mortgagee’s Architect confirming the completion of the work in accordance with plans and specifications approved by Mortgagee.

(3) At its option, Mortgagee shall (a) return to Mortgagor the balance of the Proceeds after full disbursement in accordance with Sections 1.03H(1) and (2) , or (b) apply such balance to the Obligations, whether or not then due, in such order as Mortgagee shall determine.

(4) In all cases in which any destruction of the Secured Property by fire or other casualty occurs during the last twelve (12) months prior to the Maturity Date, or in Mortgagee’s judgment, Mortgagor is not proceeding with the repair or restoration in a manner that would entitle Mortgagor to have the Proceeds disbursed to it, or for any other reason Mortgagee determines in its judgment that Mortgagor shall not be entitled to the Proceeds pursuant to the terms of this Mortgage, Mortgagee shall have the options set forth in Section 1.03F(3) .

1.04 Escrow Payments . To further secure the Obligations as to payment of the Impositions (as set forth in Section 1.02 ) and premiums for insurance (as set forth in Section 1.03 ), Mortgagor will pay to Mortgagee, or its designee, on the due date of each monthly installment of principal and/or interest pursuant to the Note, a sum equal to the Impositions and insurance premiums next due on the Secured Property, all as estimated by Mortgagee, less all sums already paid with respect to the Impositions and insurance premiums for such period, divided by the number of months to elapse before one month prior to the date when such Impositions and insurance premiums shall become due and payable. Mortgagee or its designee shall hold all payments without any obligation for the payment of interest thereon to Mortgagor and free of all liens or claims on the part of creditors of Mortgagor and as a part of the Secured Property. Mortgagee or its designee shall use such payments to pay current Impositions and insurance premiums, as the same accrue and are payable. Such payments shall not be, nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, or its designee. If at any time and for any reason Mortgagee determines that such payments are insufficient to pay the Impositions and insurance premiums in full as they become payable, Mortgagor will pay to Mortgagee or its designee, within ten (10) days after demand therefor, such additional sum or sums as may be required in order for Mortgagee or its designee to so pay such Impositions and insurance premiums in full. Mortgagor shall furnish Mortgagee with the bills therefor within sufficient time to enable Mortgagee or its designee to pay the Impositions and insurance premiums before any penalty attaches and before any policy lapses. Upon any Event of Default in the provisions of any Loan Instrument, Mortgagee may, at its discretion and without regard to the adequacy of its security hereunder, apply any unused portion of such payments to the payment of the Obligations in such manner as it may elect. Transfer of legal title to the Secured Property shall automatically transfer to the new owner any then remaining rights of Mortgagor in all sums held by Mortgagee pursuant to this Section 1.04 .

1.05 Care and Use of the Premises .

1.05A. Maintenance and Repairs . Mortgagor, at its sole cost and expense, shall (1) take good care of the Secured Property and the sidewalks adjoining the Secured Property and

 

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keep the same in good order and condition, (2) make all necessary repairs thereto, interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen, (3) not commit or suffer to be committed any waste of the Secured Property, and (4) not do or suffer to be done anything which will increase the risk of fire or other hazard to the Secured Property or any part thereof.

1.05B. Standard of Repairs . The necessity for and adequacy of repairs to the Secured Property pursuant to Section 1.05A shall be measured by the standard which is appropriate for a first class office building and related facilities of similar construction and type located in the Hudson County, New Jersey area. Further, Mortgagor shall make all repairs necessary to avoid any structural damage to the Improvements and to keep the Secured Property in a proper condition for its intended use. When used in this Section 1.05 , the terms “repair” and “repairs” shall include all necessary renewals and replacements. Mortgagor shall make all repairs with new, first-class materials and in a good, substantial and workerlike manner which shall be equal or better in quality and class to the original work.

1.05C. Removal of Equipment . Mortgagor shall have the right, at any time and from time to time, to remove and dispose of equipment which may have become obsolete or unfit for use or which is no longer useful in the operation of the Secured Property. Mortgagor will promptly replace all equipment so disposed of or removed with other equipment of a value and serviceability equal to or greater than the original value and serviceability of the equipment so removed or disposed of, free of all liens, claims or other encumbrances. If by reason of technological or other developments in the operation and maintenance of buildings of the general character of the Improvements, no replacement of the building equipment so removed or disposed of is necessary or desirable in the proper operation or maintenance of the Improvements, Mortgagor shall not be required to replace same. The security interest of this Mortgage shall cover all such replacement equipment.

1.05D. Compliance With Laws and Insurance . Mortgagor shall promptly comply with any and all applicable Legal Requirements including maintaining the Secured Property in compliance with all Legal Requirements. Mortgagor shall not bring or keep any article upon the Secured Property or cause or permit any condition to exist thereon which would be prohibited by or could invalidate any insurance coverage maintained, or required hereunder to be maintained, by Mortgagor on or with respect to any part of the Secured Property. Mortgagor shall do all other acts, which from the character or use of the Secured Property may be necessary to protect the Secured Property. Upon request of Mortgagee, Mortgagor shall furnish to Mortgagee a copy of any license, permit or approval required by any Governmental Agency with respect to the Secured Property and/or the operations conducted thereon.

1.05E. Hazardous Materials .

(1) Mortgagor hereby unconditionally and irrevocably agrees to indemnify, reimburse, defend, exonerate, pay and hold harmless Mortgagee, and its directors, officers, policyholders, shareholders, employees, successors (including any successor to Mortgagee’s interest in the chain of title), assigns, agents, attorneys, contractors, subcontractors, experts, licensees, affiliates, lessees, mortgagees, trustees and invitees, from and against any and all of the following (referred to collectively as the “ Indemnified Claims ”): all Environmental

 

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Damages and Environmental Claims that may be actually incurred by, imposed upon, or asserted against, any Person indemnified hereunder, arising out of, related to, or in connection with:

(a) the presence of Hazardous Materials in, on, under or about or the Release or threatened Release of any Hazardous Materials to or from (i) the Secured Property or (ii) any other property legally or beneficially owned (or any interest or estate which is owned) by Mortgagor, regardless of whether or not the presence of such Hazardous Materials arose prior to the present ownership or operation of the property in question or as a result of the acts or omissions of Mortgagor or any other Person,

(b) the violation or alleged violation of any Environmental Requirement affecting or applicable to the Secured Property or any activities thereon, regardless of whether or not the violation of such Environmental Requirement arose prior to the present ownership or operation of the property in question or as a result of the acts or omissions of Mortgagor or any other Person,

(c) the breach of any warranty or covenant or the inaccuracy of any representation contained in the Loan Instruments pertaining to Hazardous Materials or other environmental matters, including the covenants contained in Sections 1.05E(2), (3), (4) and (5)  and the representations and warranties contained in Sections 1.05E(4) and 2.03C and D ,

(d) the transport, treatment, recycling, storage or disposal or arrangement therefor, of any Hazardous Material to, at or from the Secured Property, or

(e) the enforcement or attempted enforcement of this indemnity.

Mortgagor’s obligations pursuant to the foregoing indemnity shall include the burden and expense of (x) defending against all Indemnified Claims, even if such Indemnified Claims are groundless, false or fraudulent, (y) conducting all negotiations of any description with respect to the Indemnified Claims, and (z) paying and discharging any and all Indemnified Claims, when and as the same become due, against or from Mortgagee or any other Person indemnified pursuant to this Section 1.05E(1) . Mortgagor’s obligations under this Section 1.05E(1) shall survive (i) the repayment of all sums due under the Note; (ii) the release of the Secured Property or any portion thereof from the lien of this Mortgage; (iii) the reconveyance of or foreclosure under this Mortgage (notwithstanding that all or a portion of the obligations secured by this Mortgage shall have been discharged thereby); (iv) the acquisition of the Secured Property by Mortgagee; and/or (v) the transfer of all of Mortgagee’s rights in and to the Note and/or the Secured Property.

(2) Mortgagor shall maintain the Secured Property in compliance with, and shall not cause or permit the Secured Property to be in violation of, any applicable Environmental Requirements. Mortgagor shall not, and shall not permit any lessee or occupant of the Secured Property to, use, generate, manufacture, store, maintain, dispose of or permit to exist in, on, under or about the Secured Property any Hazardous Materials, except for the use, storage and disposal (such use, storage and disposal to be in all cases in accordance with all applicable Legal Requirements) of de minimis amounts of janitorial and cleaning supplies and

 

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other Hazardous Materials typically used in (A) the ordinary course of operating and maintaining a first class office building and/or (B) the ordinary course of operations of tenants’ business operations at the Secured Property. Mortgagor shall, at all times, comply fully and in a timely manner, and use its reasonable business efforts to cause all of its employees, agents, contractors and subcontractors and any other Persons occupying or present on the Secured Property to so comply, with all applicable Environmental Requirements.

(3) Promptly, upon the written request of Mortgagee, but not more frequently than once per year, Mortgagor shall provide Mortgagee, at Mortgagor’s expense, with an environmental site assessment or environmental audit report prepared by an environmental engineering firm acceptable to Mortgagee and in a form acceptable to Mortgagee, assessing the presence or absence of any Hazardous Materials and the potential costs in connection with the abatement, cleanup or removal of any Hazardous Materials found in, on, under or about the Secured Property. Mortgagor shall cooperate in the conduct of such site assessment or environmental audit.

(4) Mortgagor represents and warrants that, to its best knowledge, and except as set forth in the Phase I (a) no enforcement, cleanup, removal or other governmental or regulatory action has, at any time, been instituted, contemplated or threatened against Mortgagor, or to its knowledge, the Secured Property, pursuant to any Environmental Requirements; (b) to its knowledge, no violation or noncompliance with any Environmental Requirements has occurred with respect to the Secured Property at any time; (c) no claims have, at any time, been made or threatened by any third party against the Secured Property or against Mortgagor with respect to the Secured Property, relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in this Section 1.05E(4)(a), (b) and (c)  are herein referred to as “ Hazardous Materials Claims ”). Mortgagor shall promptly advise Mortgagee, in writing, if any Hazardous Materials Claims are hereafter asserted, or if Mortgagor obtains knowledge of any Release of any Hazardous Materials in, on, under or about the Secured Property.

(5) Without Mortgagee’s prior written consent, Mortgagor shall not (a) take any remedial action in response to the presence of any Hazardous Materials in, on, under or about the Secured Property, or (b) enter into any settlement agreement, consent decree or other compromise in respect of any such Hazardous Materials or any Hazardous Material Claims. However, Mortgagee’s prior consent shall not be necessary in the event that the presence of any Hazardous Materials in, on, under or about the Secured Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Mortgagee’s consent before taking such action. In such event, Mortgagor shall notify Mortgagee as soon as practical of any action so taken. Mortgagee shall not withhold its consent, where such consent is required hereunder, if either (a) a particular remedial action is ordered by a court of competent jurisdiction, or (b) Mortgagor establishes to the satisfaction of Mortgagee that there is no reasonable alternative to such remedial action which would result in less impairment to the Secured Property.

(6) Mortgagee, if it so elects, shall have the right to join and participate as a party in any legal proceedings or actions initiated by any Person in connection with any Hazardous Materials Claim and, in such case, Mortgagor shall pay all of Mortgagee’s out-of-pocket attorneys’ fees and expenses actually incurred in connection therewith.

 

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1.05F. Compliance With Instruments of Record . Mortgagor shall promptly perform and observe, or cause to be performed and observed, all terms, covenants and conditions of all instruments of record affecting the Secured Property, non-compliance with which may affect the priority of the lien of this Mortgage, or which may impose any duty or obligation upon Mortgagor or any lessee or other occupant of the Secured Property or any part thereof. Mortgagor shall do or cause to be done all things necessary to preserve intact and unimpaired all easements, appurtenances and other interests and rights in favor, or constituting any part, of the Secured Property.

1.05G. Alteration of Secured Property . Mortgagor shall not demolish, remove, construct, restore, add to or alter any portion of the Secured Property or any extension thereof, or consent to or permit any such demolition, removal, construction, restoration, addition or alteration without Mortgagee’s prior written consent, which shall not be unreasonably withheld, except for (1) initial tenant improvement work provided for in any Lease in effect on the date hereof and in any other Lease approved by Mortgagee in writing (to the extent that such approval is required under the terms of the Loan Instruments), (2) ordinary, non-structural maintenance work, and (3) construction, additions or alterations costing less than $500,000.

1.05H. Parking . Mortgagor shall comply with all Legal Requirements for parking and shall grant no parking rights in the Secured Property other than to Lessees under Leases, except with Mortgagee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Parking shall be available, pursuant to the Easement Agreement, for tenants from an adjacent parking lot to the west of the Secured Property, providing approximately 468 parking spaces (0.79 parking spaces per 1,000 square feet of rentable area in the Improvements). If any part of the automobile parking areas included within the Secured Property is taken by condemnation or such areas are otherwise reduced, Mortgagor shall provide parking facilities in kind, size and location as required to comply with all Leases and with the parking requirements set forth herein. Any lease or other contract for such facilities must be assignable and must be otherwise in form and substance satisfactory to Mortgagee. Before entering into any such lease or other contract, Mortgagor will furnish to Mortgagee satisfactory assurance of the completion of such facilities free of all liens and in conformity with all Legal Requirements.

1.05I. Entry on Secured Property . Mortgagee or its representatives may enter upon and inspect the Secured Property at all reasonable times, subject to rights of tenants.

1.05J. No Consent to Alterations or Repairs . Nothing contained in this Mortgage shall in any way constitute the consent or request of Mortgagee, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration or repair of the Secured Property or any part thereof.

1.05K. Preservation of Lien; Mechanic’s Liens . Mortgagor shall do or cause to be done everything necessary so that the lien of this Mortgage shall be fully preserved, at the sole

 

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cost of Mortgagor. Mortgagor shall discharge, pay or bond, or cause to be discharged, paid or bonded, from time to time when the same shall become due, all lawful claims and demands of mechanics, materialmen, laborers and others which, if unpaid, might result in, or permit the creation of, a lien on the Secured Property or any part thereof, or on the revenues, Rents, issues, income or profits arising therefrom.

1.05L. Use of Secured Property by Mortgagor . Mortgagor shall use, or cause to be used, the Secured Property principally and continuously as and for a first-class office building. Mortgagor shall not use, or permit the use of, the Secured Property or any part thereof, for any other principal use without the prior written consent of Mortgagee. Mortgagor shall not initiate or acquiesce to any change in any zoning or other land use classification now or hereafter in effect and affecting the Secured Property or any part thereof without in each case obtaining Mortgagee’s prior written consent thereto.

1.05M. Use of Secured Property by Public . Mortgagor shall not suffer or permit the Secured Property, or any part thereof, to be used by the public as such, without restriction or in such manner as might impair Mortgagor’s title to the Secured Property or any part thereof, or in such manner as might make possible a claim or claims of adverse usage or adverse possession, or of any implied dedication to the public of the Secured Property or any part thereof.

1.05N. Management . Management of the Premises shall be reasonably satisfactory to Mortgagee and shall be performed by Mortgagor, Mack-Cali Realty, L.P., or by a management company approved in writing by Mortgagee and under a management contract satisfactory to Mortgagee, which management contract shall be subject and subordinate to the rights and title of Mortgagee under this instrument.

1.05O. Permitted Contests . If, and for so long as, Mortgagor is not in default pursuant to any of the Loan Instruments, Mortgagor shall have the right, after prior notice to Mortgagee, to contest, by appropriate legal proceedings, diligently conducted in good faith and without cost or expense to Mortgagee, the validity or application of any Legal Requirement, subject to the following:

(1) Such contest shall not subject Mortgagee or Mortgagor to any civil or criminal liability;

(2) By the terms of any such Legal Requirement, compliance therewith pending the prosecution of any such legal proceedings may legally be delayed without incurring (or increasing the risk of incurring) any damage or injury of any kind to the Secured Property or any Person or property and without incurring any lien or charge of any kind against the Secured Property or any fine or penalty against Mortgagor, Mortgagor may delay compliance therewith until the final determination of such legal proceedings; and

(3) Such contest shall not cause a breach of any of the terms, conditions or covenants of any Lease or other agreement on Mortgagor’s part to be performed.

 

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1.06 Financial Information .

1.06A. Financial Statements . Mortgagor shall keep and maintain complete and accurate books and records of the earnings and expenses of the Secured Property and, without expense to Mortgagee, furnish to Mortgagee, within one hundred twenty (120) days after the end of each fiscal year of Mortgagor, including the fiscal year during which the Loan is closed, an annual financial statement certified by an independent certified public accountant which is a “Big 4” accounting firm or is reasonably satisfactory to Mortgagee and prepared in accordance with generally accepted accounting principles relating to real estate consistently applied, which shall include with respect to the Secured Property: (1) a balance sheet, (2) a statement of cash flows and (3) a detailed summary of operations, including, all Rents and other income derived from and all operating and capital expenses paid or incurred in connection with the Secured Property. Mortgagor shall also provide to Mortgagee company-prepared financial statements containing (i) a detailed line item breakdown of all capital expenses broken down into leasing commissions, tenant improvements, capital maintenance, common areas renovation and expansion, (ii) a certified rent roll and other pertinent information regarding the leasing as may be reasonably required by Mortgagee and (iii) annual sales figures for all tenants who are required to provide such information to Mortgagor. In addition to such annual financial statements, Mortgagor shall furnish to Mortgagee such interim statements of financial position and cash flows and such interim summaries of operations and interim rent rolls, including any of the information described in the foregoing provisions of this Section 1.06A , as Mortgagee shall reasonably require; provided , however , that Mortgagee shall not require Mortgagor to furnish such interim statements more than twice annually, so long as no Event of Default has occurred and is continuing under any of the Loan Instruments and no event, which with the giving of notice or lapse of time, or both, would constitute an Event of Default. As to any Guarantor, Mortgagor shall also furnish, or cause to be furnished, to Mortgagee, within one hundred twenty (120) days after the end of each fiscal year of each Guarantor, if any, including the fiscal year during which the Loan is closed: (1) a balance sheet, (2) a statement of cash flows and (3) a profit and loss statement for each Guarantor, all certified by an independent, certified public accountant which is a “Big 4” accounting firm or is reasonably satisfactory to Mortgagee and prepared in accordance with generally accepted accounting principles, consistently applied, which shall include a balance sheet, a statement of cash flows and statement of profit and loss.

1.06B. Right to Inspect Books and Records . Mortgagee or its representatives shall have the right to examine and make copies of all books and records and all supporting vouchers and data related to the Secured Property. Such examination may occur at the Secured Property or at Mortgagor’s principal place of business and shall be at Mortgagor’s sole cost and expense.

1.07 Condemnation .

1.07A. Mortgagee’s Right to Participate in Proceedings . If the Secured Property, or any part thereof, shall be taken in condemnation proceedings or by exercise of any right of eminent domain (collectively, “ Condemnation Proceedings ”), Mortgagee shall have the right to participate in any such Condemnation Proceedings and all awards or payments (collectively, “ Award ”) that may be made in any such Condemnation Proceedings are hereby assigned to Mortgagee, and shall be deposited with Mortgagee and applied in the manner set

 

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forth in this Section 1.07 . Mortgagor shall give Mortgagee immediate notice of the actual or threatened commencement of any Condemnation Proceedings affecting all or any part of the Secured Property, including all such Condemnation Proceedings as to severance and consequential damage and change in grade in streets, and will deliver to Mortgagee copies of any and all papers served or received in connection with any Condemnation Proceedings. Notwithstanding the foregoing, Mortgagee is hereby authorized, at its option, to commence, appear in and prosecute in its own or Mortgagor’s name any action or proceeding relating to any Condemnation Proceedings and to settle or compromise any claim in connection therewith. Mortgagor and Mortgagee shall cooperate with each other in connection with any such Condemnation Proceedings, including negotiation for a possible settlement. No settlement for the damages sustained in connection with any Condemnation Proceedings shall be made by Mortgagor without Mortgagee’s prior written approval, provided, however , that so long as no Event of Default then exists, Mortgagor may settle or compromise any claim that does not exceed $1,000,000.00. Mortgagor shall execute any and all further documents that may be required in order to facilitate the collection of each Award.

1.07B. Application of Condemnation Award .

(1) If at any time title or temporary possession of the whole or any part of the Secured Property shall be taken in any Condemnation Proceeding or pursuant to any agreement among Mortgagor, Mortgagee and/or those authorized to exercise the right of condemnation, Mortgagee, in its discretion and without regard to the adequacy of its security hereunder, shall have the right to apply any Award received to payment of the Obligations whether or not due, in such order as Mortgagee shall determine. If all or substantially all of the Secured Property is taken and the amount of the Award received by Mortgagee is not sufficient to pay the then unpaid balance of the Obligations, the balance of the Obligations shall, at the option of Mortgagee, become immediately due and payable and Mortgagor shall, within ten (10) days after notice to Mortgagor that Mortgagee has so applied the Award, pay the difference between such balance and the amount of the Award. “Substantially all of the Secured Property” shall be deemed to have been taken if the balance of the Secured Property, in the opinion of Mortgagee, (a) cannot be restored to a self-contained and architecturally complete unit or units or (b) the balance of the Secured Property as restored will not be economically viable and capable of supporting all carrying charges and operating and maintenance expenses.

(2) Notwithstanding any provision contained herein to the contrary, but subject to the provisions of Section 1.07B(3) , if less than substantially all of the Secured Property shall be taken in a Condemnation Proceeding (except for a taking (a) of more than 10% of the leaseable area of the Improvements, (b) of more than the amount of parking spaces required to comply with all Leases, Material Agreements and all applicable Legal Requirements, and/or (c) that affects access to the Premises or any part thereof from a public right of way), Mortgagee shall, after deducting Mortgagee’s costs in connection with collection, review and disbursement related to the Award and the Condemnation Proceeding, apply the balance of the Award to the cost of restoring, repairing or altering the remaining portion of the Secured Property, subject to the provisions of Section 1.03H (which provisions shall apply in all respects except that any reference therein to Proceeds shall be deemed to refer to the Award), and Mortgagor will promptly restore, repair or alter the remaining Secured Property, subject to the provisions of Section 1.03H . The provisions of this Section 1.07B(2) shall not apply unless

 

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Mortgagor shall furnish to Mortgagee evidence satisfactory to Mortgagee that the Secured Property, as so restored, reconstructed or altered, and its use would fully comply with all Legal Requirements. The balance of the Award so deposited with Mortgagee, after disbursement in accordance with this Section 1.07B(2) , shall be applied to the payment of the Obligations, whether or not due, in such order as Mortgagee shall determine. The Award and other sums deposited with Mortgagee, until disbursed or applied as provided in this Section 1.07B(2) , may be commingled with the general funds of Mortgagee, shall constitute additional security for the Obligations, and shall not bear interest.

(3) In all cases in which any taking occurs during the last twelve (12) months prior to the Maturity Date, or in Mortgagee’s judgment, Mortgagor is not proceeding with the repair or restoration in a manner that would entitle Mortgagor to have the Award disbursed to it, or for any other reason Mortgagee determines, in its judgment, that Mortgagor shall not be entitled to the Award pursuant to the terms of this Mortgage, Mortgagee, without regard to the adequacy of its security hereunder, shall have the right to apply the Award to payment of the Obligations, whether or not due, in such order as Mortgagee shall determine.

1.07C. Reimbursement of Costs . In the case of any taking covered by the provisions of this Section 1.07 , Mortgagee (to the extent that Mortgagee has not been reimbursed therefor by Mortgagor) shall be entitled, as a first priority, to reimbursement out of any Award for all reasonable costs, fees, and expenses actually incurred in the determination and collection of the Award.

1.07D. Existing Obligations . Notwithstanding any taking by Condemnation Proceedings or any application of the Award to the Obligations, Mortgagor shall continue to pay the monthly installments due pursuant to the Note, as well as all other sums secured by this Mortgage. If prior to Mortgagee’s receipt of the Award, the Secured Property shall have been sold through foreclosure of this Mortgage or other similar proceeding, Mortgagee shall have the right to receive the Award to the extent that any portion of the Obligations are still unpaid after application of the proceeds of the foreclosure sale or similar proceeding, with interest thereon at the Increased Rate, plus attorneys’ fees and other costs and disbursements incurred by Mortgagee in connection with the collection of the Award and in establishing the amount of, and collecting, any deficiency. The application of the Award to the Obligations, whether or not then due or payable, shall not postpone, abate or reduce any of the periodic installments of interest or principal thereafter to become due pursuant to the Note or this Mortgage until the Obligations are paid and performed in full.

1.08 Leases .

1.08A. Performance of Lessor’s Covenants . Mortgagor, as lessor, has entered and will enter into leases or licenses with tenants, as lessees or licensees, respectively, for parts or all of the Secured Property (all such leases and licenses are hereinafter referred to individually as a “ Lease ” and collectively as “ Leases ” and the lessees or licensees under such Leases are hereinafter referred to individually as a “ Lessee ” and collectively as “ Lessees ”). Mortgagor shall faithfully perform the lessor’s covenants under the Leases. Mortgagor shall neither do, nor neglect to do, nor permit to be done (other than enforcing the terms of such Leases and exercising the lessor’s remedies thereunder following a default or event of default on the part of

 

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any Lessee in the performance of its obligations pursuant to the Lease), anything which may cause the modification or termination of any of the Leases in violation of the terms hereof, or of the obligations of any Lessee or any other person claiming through such Lessee, or which may diminish or impair the value of any Lease or the Rents provided for therein, or the interest of the lessor or of Mortgagee therein or thereunder. Each Lease shall make provision for the attornment of the Lessee thereunder to any person succeeding to the interest of Mortgagor as the result of any judicial or nonjudicial foreclosure or transfer in lieu of foreclosure hereunder, such provision to be in form and substance approved by Mortgagee, provided that nothing herein shall be construed to require Mortgagee to agree to recognize the rights of any Lessee under any Lease following any such foreclosure or transfer in lieu thereof unless Mortgagee shall expressly hereafter agree thereto in writing with respect to a particular Lease.

1.08B. Notice of Default . Mortgagor shall give Mortgagee immediate notice of any notice of a material default or of any event of default, extension, renewal, expansion, surrender or cancellation given to or received from any Lessee or from any other Person with respect to any Lease and shall furnish Mortgagee with a copy of each such notice.

1.08C. Representations Regarding Leases . Mortgagor represents and warrants that (1) all representations made by it in the Leases are true; (2) all Improvements and the leased space demised and let pursuant to each Lease have been completed to the satisfaction of the applicable Lessee other than for work to be performed by the tenant thereunder; (3) each Lessee is in possession of its leased space, has opened for business and has commenced payment of Rent under its Lease; (4) all Rents and other charges due and payable under the Leases have been paid; (5) no Rent has been prepaid, except as expressly provided pursuant to the applicable Lease; (6) to Mortgagor’s best knowledge, there is no existing default or breach of any covenant or condition on the part of any Lessee or lessor under any Lease; (7) there are no options to purchase all or any portion of the Secured Property contained in any Lease; (8) there are no options to renew, cancel, extend or expand by any Lessee except as stated in the Leases; (9) there are no amendments of or modifications to any Leases except as disclosed in writing to Mortgagee; (10) Mortgagor is the absolute owner of each Lease with full right and title to assign the same and the Rents thereunder to Mortgagee; (11) each Lease is valid and in full force and effect; (12) there is no outstanding assignment or pledge thereof or of the Rents due or to become due; (13) to Mortgagor’s best knowledge, no Lessee has any defense, set-off or counterclaim against Mortgagor; (14) no Rents payable pursuant to any Lease will be anticipated, discounted, released, waived, compromised or otherwise discharged, except as may be expressly permitted by such Lease or as may be permitted herein; and (15) all Leases are subject and subordinate to this Mortgage.

1.08D. Covenants Regarding Leases . Mortgagor shall not, without the prior written consent of Mortgagee in each instance:

(1) lease to any Person, all or any part of the space in, on or over any of the Premises;

(2) cancel, terminate or accept a surrender or suffer or permit any cancellation, termination or surrender of the Schwab Lease or any other Lease or any guaranty of any Lease;

 

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(3) amend or modify any Lease in any manner, except for non-material amendments or modifications that do not adversely impact the monetary terms or economics of such Lease;

(4) commence any summary proceeding or other action to recover possession of any space demised pursuant to any Lease, other than a proceeding brought in good faith by reason of a default of any Lessee;

(5) receive or collect, or permit the receipt or collection of, any Rents for more than one month in advance of the payment due dates;

(6) take any other action with respect to any Lease which would reasonably be expected to impair the security of Mortgagee pursuant to this Mortgage;

(7) extend the Schwab Lease or any other present Lease other than in accordance with the terms presently expressly provided for therein;

(8) execute any agreement or instrument or create or permit a lien which may be or become superior to any Lease;

(9) suffer or permit to occur any release of liability of any Lessee or the accrual of any right in any Lessee to withhold payment of any Rent;

(10) sell, assign, transfer, mortgage, pledge or otherwise dispose of or encumber, whether by merger, consolidation, operation of law or otherwise, any Lease or any Rents;

(11) alter, modify or change the terms of any guaranty of any Lease or consent to the release of any party thereto;

(12) request, consent, agree to, or accept, the subordination of any Lease to any mortgage (other than this Mortgage) or other encumbrance now or hereafter affecting the Premises; or

(13) consent to the assignment of any Lease or any subletting of the Premises demised pursuant to any Lease (to the extent that the Lease (a) is in effect as of the date of this Mortgage and (b) allows for Mortgagor to give or withhold such consent in Mortgagor’s sole discretion), without Mortgagee’s prior written consent.

1.08E. Application of Rents . Mortgagor shall use and apply all Rents from the Secured Property first to the payment and performance of the Obligations in accordance with the terms of the Loan Instruments, and then to the payment of all Impositions and the costs and expenses of management, operation, repair, maintenance, preservation, reconstruction and restoration of the Secured Property in accordance with the requirements of this Mortgage and the obligations of Mortgagor as the lessor under any Lease. Mortgagor shall not use any Rents for purposes unrelated to the Secured Property unless and until all current payments of the Obligations, Impositions and such costs and expenses have been paid or provided for and adequate cash reserves have been set aside to ensure the timely future payment of all such items.

 

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Any Lease Guaranty Payment or Lease Termination Fee shall be either paid directly to Mortgagee or deposited with Mortgagee upon Mortgagor’s receipt thereof and any such amounts may, at Mortgagee’s election, be applied to prepay the outstanding Obligations (including any applicable Make-Whole Amount).

1.08F. Indemnity Against Unapproved Lease Modifications and Amendments . In the event that Mortgagee or any grantee or assignee of Mortgagee takes title to, or otherwise comes into possession of, the Secured Property and thereafter a Lessee under a Lease attorns to Mortgagee or such other party pursuant to a Subordination, Non-Disturbance and Attornment Agreement entered into by Mortgagee and such Lessee, Mortgagor hereby indemnifies and holds Mortgagee harmless from and against any and all claims, liabilities, costs and expenses of any kind or nature against or incurred by Mortgagee arising out of the enforcement by any Lessee against Mortgagee or any grantee or assignee of Mortgagee, of any affirmative claim, cost or expense, or any defense, abatement or right of set off under any modification or amendment to a Lease which is binding upon Mortgagee and which was entered into by Mortgagor after the date of this Mortgage in violation of the requirements of Subsection 1.08D hereof

1.09 Assignment of Leases, Rents, Income, Profits and Cash Collateral .

1.09A. Assignment; Discharge of Obligations . Mortgagor hereby unconditionally, absolutely and presently bargains, sells, grants, assigns, releases and sets over unto Mortgagee (1) all Leases and all other tenancies, occupancies, subleases, franchises and concessions of the Land or Improvements or which in any way affect the use or occupancy of all or any part of the Land or Improvements, and any other agreements affecting the use and occupancy of all or any part of the Land or Improvements, in each case, whether now or hereafter existing, and all right, title and interest of Mortgagor thereunder, including all rights to all security or other deposits, (2) all guarantees of the Obligations of any lessee, licensee or other similar party under any of the foregoing, whether now or hereafter existing, and (3) the Rents, regardless of whether the Rents accrue before or after foreclosure or during the full period of redemption. For the aforesaid purpose, Mortgagor does hereby irrevocably constitute and appoint Mortgagee its attorney-in-fact, in its name, to receive and collect all Rents, as the same accrue, and, out of the amount so collected, Mortgagee, its successors and assigns, are hereby authorized (but not obligated) to pay and discharge the Obligations (including any accelerated Obligations) in such order as Mortgagee may determine and whether due or not, and to pay the remainder, if any, to Mortgagor, or as otherwise required by law. Neither this assignment nor any such action shall constitute Mortgagee as a “mortgagee in possession” or otherwise make Mortgagee responsible or liable in any manner with respect to the Secured Property or the use, occupancy, enjoyment or operation of all or any portion thereof, unless and until Mortgagee, in person or by agent, assumes actual possession thereof. Nor shall appointment of a receiver for the Secured Property by any court at the request of Mortgagee or by agreement with Mortgagor, or the entering into possession of the Secured Property or any part thereof by such receiver, be deemed to make Mortgagee a mortgagee-in-possession or otherwise responsible or liable in any manner with respect to the Secured Property or the use, occupancy, enjoyment or operation of all or any portion thereof. The assignment of all Leases and Rents in this Section 1.09 is intended to be an absolute, unconditional and present assignment from Mortgagor to Mortgagee and not merely the passing of a security interest. Mortgagor shall, at any time or from time to time, upon request of Mortgagee, execute and deliver any instrument as may be reasonably requested by Mortgagee to

 

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further evidence the assignment and transfer to Mortgagee of Mortgagor’s interest in any Lease or Rents. Nothing herein shall in any way limit Mortgagee’s remedies or Mortgagor’s Obligations under the Assignment.

1.09B. Entry Onto Secured Property; Lease of Secured Property . Mortgagee, at its option, may enter and take possession of the Secured Property and manage and operate the same as provided in Section 4.01 , such management and operation to include the right to enter into Leases and new agreements and to take any action which, in Mortgagee’s judgment, is necessary or proper to conserve the value of the Secured Property. The expenses (including any receiver’s fees, attorneys’ fees and agent’s compensation) incurred pursuant to the powers herein contained shall be secured hereby. Mortgagee shall not be liable to account to Mortgagor for any action taken pursuant hereto other than to account for any Rents actually received by Mortgagee.

1.09C. License to Manage Secured Property . Notwithstanding anything to the contrary contained in Section 1.09A or Section 1.09B , so long as there shall exist no Event of Default hereunder, Mortgagor shall have the license to manage and operate the Secured Property, including the right to enter into Leases, and collect all Rents as they accrue (but not more than one month in advance).

1.09D. Delivery of Assignments . Mortgagor shall execute such additional documents as may be reasonably requested from time to time by Mortgagee, to evidence the assignment to Mortgagee or its nominee of any Leases now or hereafter made, such assignment documents to be in form and content acceptable to Mortgagee. Mortgagor shall deliver to Mortgagee, within thirty (30) days after Mortgagee’s request (1) a duplicate original or photocopy of each Lease which is at the time of such request outstanding upon the Secured Property and (2) a complete schedule, certified by Mortgagor, of each Lease, showing the suite number, type, Lessee name, monthly rental, date to which Rents have been paid, term of Lease, date of occupancy, date of expiration, existing defaults, if any, and every special provision, concession or inducement granted to such Lessee.

1.09E. Indemnity . Mortgagor shall assert no claim or liability related to Mortgagee’s exercise of its rights pursuant to this Section 1.09 . Mortgagor expressly waives all such claims and liabilities. Mortgagor hereby holds Mortgagee harmless from and against any and all claims, liabilities and expenses of any kind or nature against or incurred by Mortgagee arising out of Mortgagee’s exercise of its rights pursuant to this Section 1.09 , including Mortgagee’s management, operation or maintenance of the Secured Property or the collection and disposition of Rents unless caused by the gross negligence or willful misconduct of Mortgagee.

1.10 Further Assurances .

1.10A. General; Appointment of Attorney-in-Fact . Upon request by Mortgagee, from time to time, Mortgagor shall prepare, execute and deliver, or cause to be prepared, executed and delivered, to Mortgagee, all instruments, certificates and other documents which may, in the reasonable opinion of Mortgagee, be necessary or desirable in order to effectuate, complete, perfect or continue and preserve the Obligations and the lien of this Mortgage. Upon any failure by Mortgagor to do so, Mortgagee may prepare, execute and record any such

 

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instruments, certificates and documents for and in the name of Mortgagor and Mortgagor hereby appoints Mortgagee the agent and attorney-in-fact of Mortgagor for such purposes. This power is coupled with an interest and shall be irrevocable so long as any part of the Obligations remain unpaid or unperformed. Mortgagor shall reimburse Mortgagee for all sums expended by Mortgagee in preparing, executing and recording such instruments, certificates and documents and such sums shall be secured by this Mortgage.

1.10B. Statement Regarding Obligations . Mortgagor shall, within ten (10) days after request by Mortgagee, furnish Mortgagee with a written statement, duly acknowledged, setting forth (1) the unpaid principal balance of the Loan and the accrued but unpaid interest thereon, (2) whether or not any setoffs or defenses exist against the payment of such principal or interest, and (3) if such setoffs or defenses exist, the particulars thereof.

1.10C. Additional Security Instruments . Mortgagor, from time to time and within fifteen (15) days after request by Mortgagee, shall execute, acknowledge and deliver to Mortgagee such chattel mortgages, security agreements or other similar security instruments, in form and substance satisfactory to Mortgagee, covering all property of any kind whatsoever owned by Mortgagor or in which Mortgagor may have any interest which, in the opinion of Mortgagee, is necessary to the operation and maintenance of the Secured Property or is otherwise a part of the Secured Property. Mortgagor, from time to time and within fifteen (15) days after request by Mortgagee, shall also execute, acknowledge and deliver any financing statement, renewal, affidavit, certificate, continuation statement, supplementary mortgage or other document as Mortgagee may request in order to perfect, preserve, continue, extend or maintain the security interest under, and the priority of, this Mortgage or such chattel mortgage or other security instrument, as a first lien. Mortgagor shall pay to Mortgagee on demand all costs and expenses incurred by Mortgagee in connection with the preparation, execution, recording, filing and refiling of any such instrument or document, including charges for examining title and attorneys’ fees and expenses for rendering an opinion as to the priority of this Mortgage and of each such chattel mortgage or other security agreement or instrument as a valid and subsisting first lien on such property. Neither a request so made by Mortgagee, nor the failure of Mortgagee to make such a request, shall be construed as a release of such property, or any part thereof, from the lien of this Mortgage. This covenant and each such mortgage, chattel or other security agreement or instrument, delivered to Mortgagee are cumulative and given as additional security. Mortgagor shall pay all premiums and related costs in connection with any title insurance policy or policies in full or partial replacement of the title insurance policy now insuring or which will insure the lien of this Mortgage.

1.10D. Security Agreement . This Mortgage shall constitute a security agreement under Article 9 of the Code with respect to the Personal Property covered by this Mortgage. Pursuant to the applicable Granting Clauses hereof, Mortgagor has granted Mortgagee a security interest in the Personal Property and in all additions and accessions thereto, substitutions therefor and proceeds thereof for the purpose of securing all Obligations now or hereafter secured by this Mortgage. The following provisions relate to such security interest:

(1) The Personal Property includes all now existing or hereafter acquired or arising equipment, inventory, accounts, chattel paper, instruments, documents, deposit accounts, investment property, letter-of-credit rights, commercial tort claims, supporting

 

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obligations and general intangibles now or hereafter used or procured for use on the Premises or otherwise relating to the Premises. If Mortgagor shall at any time acquire a commercial tort claim relating to the Premises, Mortgagor shall immediately notify Mortgagee in a writing signed by Mortgagor of the brief details thereof and grant to Mortgagee a security interest therein and in the proceeds thereof.

(2) Mortgagor hereby irrevocably authorizes Mortgagee at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the collateral as “all assets used or procured for use or otherwise relating to” the Premises or words of similar effect, or as being of equal or lesser scope or in greater detail, and to indicate the Premises as defined, or in a manner consistent with the term as defined, in this Mortgage and (b) contain any other information required by part 5 of Article 9 of the Uniform Commercial Code of the filing office for the sufficiency or filing office acceptance of any initial financing statement or amendment, including whether Mortgagor is an organization, the type of organization and any organizational identification number issued to Mortgagor. Mortgagor agrees to provide any such information to Mortgagee promptly upon request. Mortgagor also ratifies its authorization for Mortgagee to have filed in any filing office in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof. Mortgagor shall pay to Mortgagee, from time to time, upon demand, any and all costs and expenses incurred by Mortgagee in connection with the filing of any such initial financing statements and amendments, including attorneys’ fees and all disbursements. Such costs and expenses shall bear interest at the Increased Rate from the date paid by Mortgagee until the date repaid by Mortgagor and such costs and expenses together with such interest shall be part of the Obligations and shall be secured by this Mortgage.

(3) Mortgagor shall any time and from time to time take such steps as Mortgagee may reasonably request for Mortgagee to obtain “control” of any Personal Property for which control is a permitted or required method to perfect or to insure priority of the security interest in such Personal Property granted hereby.

(4) Upon the occurrence of an Event of Default, Mortgagee shall have the rights and remedies of a secured party under the Code as well as all other rights and remedies available at law or in equity or under this Mortgage.

(5) This Mortgage also constitutes a fixture filing.

(6) If Mortgagor does not have an organizational identification number and later obtains one, Mortgagor shall forthwith notify Mortgagee of such organizational identification number.

(7) Terms defined in the Code and not otherwise defined in this Mortgage have the same meanings in this Section 1.10D as are set forth in the Code. In the event that a term is used in Article 9 of the Code and also in another Article of the Code, the term used in this Section 1.10D is that used in Article 9. The term “control”, as used in this Paragraph, has the meaning given in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the Code, as applicable.

 

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1.10E. Preservation of Mortgagor’s Existence . Mortgagor shall do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges under the laws of the jurisdiction of its formation and of the State, and shall comply with all applicable Legal Requirements.

1.10F. Further Indemnities . In addition to any other indemnities contained in the Loan Instruments, Mortgagor hereby agrees to indemnify and hold Mortgagee harmless from and against all losses, liabilities, suits, obligations, fines, damages, penalties, claims, costs, charges and expenses, including architects’, engineers’ and attorneys’ fees and disbursements which may be imposed upon, actually incurred or asserted against Mortgagee by reason of: (1) the construction of the Improvements, (2) any capital improvements, other work or things, done in, on, under or about the Secured Property or any part thereof, (3) any use, nonuse, misuse, possession, occupation, alteration, repair, condition, operation, maintenance or management of the Secured Property or any part thereof or any street, drive, sidewalk, curb, passageway or space adjacent thereto, (4) any negligence or willful act or omission on the part of Mortgagor, any Lessee or any agent, contractor, servant, employee, licensee or invitee of any Lessee or of Mortgagor, (5) any accident, injury (including death) or damage to any person or property occurring in, on, under or about the Secured Property or any part thereof or in, on, under or about any street, drive, sidewalk, curb, passageway or space adjacent thereto, (6) any default under any Loan Instrument or any Event of Default, (7) any lien or claim arising or alleged to have arisen on or against the Secured Property or any part thereof under any Legal Requirement or any liability asserted against Mortgagee with respect thereto, (8) any tax attributable to the execution, delivery, filing or recording of any Loan Instrument, (9) any contest permitted pursuant to the provisions of this Mortgage, or (10) the enforcement or attempted enforcement of this indemnity; provided that the foregoing indemnity shall not apply to any matter resulting from the gross negligence or willful misconduct of Mortgagee.

1.10G. Absence of Insurance . The obligations of Mortgagor under this Mortgage and the other Loan Instruments shall not in any way be affected by (1) the absence, in any case, of adequate insurance, (2) the amount of the insurance or (3) the failure or refusal of any insurer to perform any obligation required to be performed by it pursuant to any insurance policy affecting the Secured Property. If any claim, action or proceeding is made or brought against Mortgagee by reason of any event as to which Mortgagor is obligated to indemnify Mortgagee, then, upon demand by Mortgagee, Mortgagor, at Mortgagor’s sole cost and expense, shall resist or defend such claim, action or proceeding in Mortgagee’s name, if necessary, by such attorneys as Mortgagee shall approve. Notwithstanding the foregoing, Mortgagee may engage its own attorneys, in its discretion, to defend it or to assist in its defense, and Mortgagor shall pay the reasonable out-of-pocket fees and disbursements of such attorneys and, until so paid, such amounts shall bear interest at the Increased Rate and shall be secured by this Mortgage.

1.10H. Lost Note . Upon Mortgagee furnishing to Mortgagor an affidavit stating that the Note has been mutilated, destroyed, lost or stolen (and an indemnity regarding the same if the Note is found), Mortgagor shall deliver to Mortgagee, in substitution therefor, a new note containing the same terms and conditions as the Note, with a notation thereon of the unpaid principal balance and accrued and unpaid interest thereon.

 

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1.11 Prohibition on Transfers, Liens or Further Encumbrances .

1.11A. Continuing Ownership and Management . Mortgagor acknowledges that the continuous ownership of the Secured Property and its continuous management and operational control by Mortgagor are material to the making of the Loan.

1.11B. Prohibition on Transfers, Liens or Further Encumbrances . Except with the prior written consent of Mortgagee, neither Mortgagor, nor any other Person, may transfer, convey, assign, sell, alienate, mortgage, encumber, pledge, hypothecate, grant a security interest in, or otherwise dispose of (in each instance whether voluntarily or involuntarily, by operation of law or otherwise, directly or indirectly, and, in each case, also prohibiting the granting of an option or the execution of an agreement relating to any of the foregoing):

 

  (1) all or any part of the Secured Property and/or the Rents, or any interest therein;

 

  (2) any legal or beneficial ownership interest in Mortgagor or in any of Mortgagor’s constituent entities, whether direct or indirect, and on all levels, whether made directly or through an intermediary, and whether made in one transaction or effected in more than one transaction; or

 

  (3) the management and operation by Mortgagor of the Secured Property.

Without limiting the generality of the foregoing, for purposes of this Section 1.11 , a transfer or disposition of the Secured Property (or the Rents, as applicable) or any part thereof or interest therein shall include (a) the change of Mortgagor’s type of organization, jurisdiction of organization or other legal structure, (b) the transfer of the Secured Property or any part thereof or interest therein to a cooperative corporation or association, (c) the conversion of all or any part of the Secured Property or interest therein to a condominium form of ownership, (d) any lease for space in any Improvements for purposes other than occupancy by the tenant, (e) any lease for space in the Improvements containing an option to purchase, (f) any conditional sale or any title retention agreement with regard to, all or any part of the Secured Property or the Rents and (g) unless Mortgagor has provided Mortgagee with at least thirty (30) days prior written notice thereof, any change of Mortgagor’s name, place of business or, if Mortgagor has more than one place of business, any change of its chief executive office, or any change of Mortgagor’s mailing address or organizational identification number if it has one. Any action or event described in this Section 1.11B is herein called a “ Transfer ” and all Transfers are prohibited without the prior written consent of Mortgagee. The foregoing restrictions on Transfers shall not apply to the pledges of ownership interests in Mortgagor securing the Loan.

1.11C. Acceleration of Obligations . In the event of a Transfer without the prior written consent of Mortgagee, Mortgagee may, without limiting any other right or remedy available to Mortgagee at law, in equity or by agreement with Mortgagor, and in Mortgagee’s discretion, and without regard to the adequacy of its security, accelerate the maturity of the Note and require the payment of all then existing Obligations, including the Make-Whole Amount provided in Section 4.06 . The giving of consent by Mortgagee to a Transfer in any one or more instances shall not limit or waive the need for such consent in any other or subsequent instances.

 

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1.11D. Exercise of Purchase Option . In the event the purchase option contained in that certain Option Agreement, dated September 29,2003, between Second Street Holdings, LLC and iStar Harborside LLC (the “ Purchase Option ”) is exercised and the Secured Property is sold pursuant such Purchase Option, without limiting any other right or remedy available to Mortgagee at law, in equity or by agreement with Mortgagor, and without regard to the adequacy of its security, the maturity of the Note shall be automatically accelerated and Mortgagor shall be required to make payment of all then existing Obligations, including the Make-Whole Amount provided in Section 4.06 (except as otherwise expressly provided in the Note).

1.12 Expenses . Promptly after Mortgagee’s demand therefor, Mortgagor shall pay Mortgagee for all out-of-pocket costs and expenses, including attorneys’ fees and expenses and costs of obtaining evidence of title, actually incurred by Mortgagee in connection with any action, suit, legal proceeding, claim or dispute (a) arising under or in connection with the performance of any rights or obligations under any Loan Instrument or affecting the Obligations or the Secured Property, (b) involving any insurance proceeds or condemnation awards with respect to the Secured Property, (c) to protect the security hereof, (d) as to any concern of Mortgagee with the condition of the Secured Property, or (e) of any other kind or nature in which Mortgagee is made a party relating to the Secured Property or the Loan, or appears as a party, including those related to the estate of an insolvent or decedent or any bankruptcy, receivership, or other insolvency under any chapter of the Bankruptcy Code (Title 11 of the United States Code), as amended, or any other insolvency proceeding or any exercise of the power of sale or judicial foreclosure as set forth in this Mortgage. If the Obligations are referred to attorneys for collection, foreclosure or any cause set forth in Article 3 , Mortgagor shall pay all costs and expenses incurred by Mortgagee, including attorneys’ fees and expenses, all costs of collection, litigation costs and costs (which may be estimated as to items to be expended after completion of any foreclosure or other action) of procuring title insurance policies, whether or not obtained, Torrens certificates and similar assurances with respect to title and value as Mortgagee may deem necessary together with all statutory costs, with or without the institution of an action or proceeding. All costs and expenses described in this Section 1.12 , with interest thereon at the Increased Rate from the date paid by Mortgagee to the date paid by Mortgagor, shall be paid by Mortgagor on demand, and shall be secured by this Mortgage.

1.13 Material Agreements .

1.13A. Performance by Mortgagor . Mortgagor shall, at its sole cost and expense, promptly and timely perform and observe all the terms, covenants and conditions required to be performed and observed by Mortgagor under the Material Agreements (including, but not limited to, the payment when due of all amounts payable by Mortgagor).

1.13B. Performance by Mortgagee . If Mortgagor shall be in default under the any Material Agreement, then, subject to the terms of such Material Agreement, Mortgagee shall have the right (but not the obligation), to cause the default or defaults under such Material Agreement to be remedied and otherwise exercise any and all rights of Mortgagor under such Material Agreement, as may be necessary to prevent or cure any default under such Material

 

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Agreement. The actions or payments of Mortgagee to cure any default by Mortgagor under any Material Agreement shall not remove or waive, as between Mortgagor and Mortgagee, any default that occurred under this Mortgage by virtue of the default by Mortgagor under such Material Agreement. All sums expended by Mortgagee to cure any such default shall be paid by Mortgagor to Mortgagee, upon demand, with interest on such sum at the Increased Rate from the date such sum is expended to and including the date the reimbursement payment is made to Mortgagee. All such indebtedness shall be deemed to be secured by this Mortgage.

1.13C. Notice of Default . Mortgagor shall notify Mortgagee promptly in writing of the occurrence of any default under any Material Agreement or the occurrence of any event that, with the passage or time or service of notice, or both, would constitute a default under a Material Agreement. Without limitation of the foregoing, Mortgagor shall promptly deliver to Mortgagee any notice (written or otherwise) noting or claiming the occurrence of any default by Mortgagor under any Material Agreement or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Mortgagor under any Material Agreement.

1.13D. No Waiver . Mortgagor shall not waive, excuse, condone or in any way release or discharge any other party from any material obligations, covenant and/or conditions under any Material Agreement without the prior written consent of Mortgagee.

1.13E. No Surrender or Modification . Mortgagor shall not, without Mortgagee’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend any Material Agreement. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications.

1.13F. No Merger . Any acquisition of any interest in the Land, the Ground Lease or the Master Lease by Mortgagor or any Affiliate of Mortgagor shall be accomplished by Mortgagor in such a manner so as to avoid a merger of the interests or estates of lessor and lessee in each of the Ground Lease and the Master Lease, unless prior written consent to such merger is granted by Mortgagee.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES

Mortgagor represents and warrants:

2.01 Warranty of Title . Mortgagor (a) lawfully owns and holds title to the Secured Property (other than the Personal Property), in fee simple, subject to no mortgage, lien, charge or other encumbrance, except as specifically set forth in the title insurance policy issued to Mortgagee upon recordation of this Mortgage, (b) has full power and lawful authority to grant, bargain, sell, convey, assign, release, pledge, set over, transfer and mortgage the Secured Property as set forth herein, (c) lawfully owns and holds title to the Personal Property subject to no mortgage, lien, charge or other encumbrance, and (d) does warrant and will defend the title to the Secured Property against all claims and demands whatsoever.

 

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2.02 Ownership of Additional or Replacement Improvements and Personal Property . All Improvements and Personal Property hereafter affixed, placed or used by Mortgagor on the Secured Property shall be owned by Mortgagor free from all mortgages, liens, charges or other encumbrances.

2.03 No Pending Material Litigation or Proceeding; No Hazardous Materials .

2.03A. Proceedings Affecting Mortgagor . Except for matters disclosed in that certain 10K filing of Guarantor, dated March 31, 2010 (the “ 10K Filing ”), which has previously been delivered to Mortgagee, there are no actions, suits, investigations or proceedings of any kind pending, or, to the best knowledge and belief of Mortgagor, threatened, against or affecting Mortgagor, or any Guarantor, or against any shareholder, general partner or member of Mortgagor or any Guarantor, or the business, operations, properties or assets of Mortgagor or any shareholder, general partner or member of Mortgagor or any Guarantor, or before or by any Governmental Agency, which may result in any material adverse change in the business, operations, properties or assets or in the condition, financial or otherwise, of Mortgagor or any Guarantor or any general partner or member of Mortgagor or any Guarantor, or in the ability of Mortgagor to pay or otherwise perform the Obligations. Except for matters disclosed in the 10K Filing, to the best knowledge and belief of Mortgagor, no default exists with respect to any judgment, order, writ, injunction, decree, demand, rule or regulation of any Governmental Agency, which might materially and adversely affect the business, operations, properties or assets or the condition, financial or otherwise, of Mortgagor or any Guarantor or any general partner or member of Mortgagor or the ability of Mortgagor to pay or otherwise perform the Obligations.

2.03B. Proceedings Affecting Secured Property . There are no actions, suits, investigations or proceedings of any kind pending, or, to the best knowledge and belief of Mortgagor, threatened, against or affecting the Secured Property (including any attempt or threat by any Governmental Agency to condemn or rezone all or any portion of the Secured Property), or involving the validity, enforceability or priority of the Loan Instruments or enjoining or preventing or threatening to enjoin or prevent the use and occupancy of the Secured Property or the performance by Mortgagee of the Obligations, and there are no rent controls, governmental moratoria or environmental controls (other than those generally imposed by federal or State law) presently in existence or, to the best knowledge and belief of Mortgagor, threatened, affecting the Secured Property. Mortgagee acknowledges that it has been advised by Mortgagor of the dispute with the City of Jersey City regarding the Tax Exemption Documents.

2.03C. No Hazardous Material . Except as disclosed in the Phase I, neither Mortgagor nor, to the best knowledge and belief of Mortgagor, any other Person has ever:

(1) caused or knowingly permitted any Hazardous Material to be placed, held, located or disposed of, in, on, under or about the Secured Property or any part thereof, except for the use, storage and disposal (such use, storage and disposal to be in all cases in accordance with all applicable Legal Requirements) of de minimis amounts of janitorial and

 

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cleaning supplies and other Hazardous Materials typically used in (A) the ordinary course of operating and maintaining a first class office building and/or (B) the ordinary course of operations of tenants’ business operations at the Secured Property, or caused or knowingly permitted, in violation of any Legal Requirement, any Hazardous Material to be placed, held, located or disposed of, in, on, under or about any other real property legally or beneficially owned (or any interest or estate which is so owned) by Mortgagor in any jurisdiction now or hereafter having in effect a so-called “superlien” law or ordinance (the effect of which superlien law or ordinance would be to permit the creation of a lien on the Secured Property to secure any obligation), and neither the Secured Property, nor any part thereof, nor any other real property legally or beneficially owned (or any interest or estate therein which is so owned) by Mortgagor in any jurisdiction now or hereafter having in effect a so-called “superlien” law or ordinance or any part thereof, has ever been used (whether by Mortgagor or, to the best knowledge or belief of Mortgagor, by any other Person) as a dump site, storage (whether permanent or temporary) site or transfer site for any Hazardous Material; or

(2) caused or knowingly permitted any asbestos or underground fuel storage facility to be located in, on, under or about the Secured Property; or

(3) discovered any occurrence or condition on any real property adjoining or in the vicinity of the Secured Property that could cause the Secured Property or any part thereof to be subject to any remediation requirements or any restrictions on the ownership, occupancy, transferability or use of the Secured Property under any Environmental Requirement.

2.03D. No Litigation Regarding Hazardous Material . No Person has brought, settled or, to the best knowledge and belief of Mortgagor, threatened any litigation or administrative action or proceeding alleging the presence, Release or threatened Release of any Hazardous Material in, on, under or about the Secured Property.

2.04 Valid Organization, Good Standing and Qualification of Mortgagor; Other Organizational Information . Mortgagor is a duly and validly organized and existing limited liability company in good standing under the laws of the jurisdiction of its organization, and is duly licensed or qualified and in good standing in all other jurisdictions where its ownership or leasing of property or the nature of the business transacted by it makes such qualification necessary, and is entitled to own its properties and assets and to carry on its business, all as, and in the places where, such properties and assets are now owned or operated or such business is now conducted. Mortgagor has paid all franchise and similar taxes in the jurisdiction in which the Secured Property is located and in all of the jurisdictions in which it is so qualified, insofar as such taxes are due and payable at the date of this Mortgage. Mortgagor’s exact legal name is that indicated on the signature page hereof. Mortgagor is an organization of the type, and is organized in the jurisdiction, as set forth in the first paragraph of this Mortgage. AFE’s organizational identification number is 0600050147; Plaza X Urban Renewal’s organizational identification number is 0600098737; and Plaza X Leasing’s organizational identification number is 0600099077. Section 5.07 accurately sets forth Mortgagor’s place of business or, if Mortgagor has more than one place of business, its chief executive office as well as Mortgagor’s mailing address if different.

 

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2.05 Authorization; No Legal Restrictions on Performance . The execution and delivery by Mortgagor of the Loan Instruments and its compliance with the terms and conditions of the Loan Instruments have been duly and validly authorized by all necessary corporate, partnership, membership or other applicable action by Mortgagor and its constituent entities and the Loan Instruments are valid and enforceable obligations of Mortgagor in accordance with the terms thereof. Neither the execution and delivery by Mortgagor of the Loan Instruments, nor the consummation of the transactions contemplated by the Loan Instruments, nor compliance with the terms and conditions thereof will (A) conflict with or result in a breach of, or constitute a default under, any of the terms, obligations, covenants or conditions or provisions of (1) any corporate charter or bylaws, partnership agreement, limited liability company operating agreement, or other organizational or qualification document, restriction, indenture, mortgage, deed of trust, pledge, bank loan or credit agreement, or any other agreement or instrument to which Mortgagor is now a party or by which Mortgagor or its properties may be bound or affected, or (2) to the best knowledge and belief of Mortgagor, any judgment, order, writ, injunction, decree or demand of any Governmental Agency, or (B) result in (1) the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any property or asset of Mortgagor pursuant to the terms or provisions of any of the foregoing or (2) the violation of any Legal Requirement applicable to Mortgagor or any Guarantor. Mortgagor is not in default in the performance, observance or fulfillment of any of the terms, obligations, covenants or conditions contained in any indenture or other agreement creating, evidencing or securing the Obligations or pursuant to which Mortgagor is a party or by which the Mortgagor or its properties may be bound or affected.

2.06 Compliance With Laws . Mortgagor has, to the best knowledge and belief of Mortgagor, complied with all applicable Legal Requirements with respect to the conduct of its business and ownership of its properties. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained, and no registrations or declarations are required to be filed in connection with the execution, delivery or performance by Mortgagor of its obligations under the Loan Instruments.

2.07 Tax Status . Mortgagor has filed all United States income tax returns and all state and municipal tax returns which are required to be filed, and has paid, or made provision for the payment of, all taxes which have become due pursuant to such returns or pursuant to any assessment received by Mortgagor. The United States income tax liability of Mortgagor has been finally determined by the Internal Revenue Service and satisfied for all taxable years up to and including the taxable year ending 2009.

2.08 Absence of Foreign or Enemy Status; Absence of Blocked Persons; Foreign Corrupt Practices Act . Neither the Loan, nor Mortgagor’s use of the proceeds thereof, will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Mortgagor is and shall remain in compliance with the requirements of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)) (the “ Order ”) and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (“ OFAC ”) and in any enabling legislation or other executive orders

 

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or regulations in respect thereof (the Order and such other rules regulations, legislation or orders are referred to hereinafter, collectively, as the “ Orders ”). Without limiting the generality of the foregoing, neither Mortgagor, nor any subsidiary or affiliate of Mortgagor, nor any managing member, general partner or shareholder or other beneficial owner owning ten percent (10%) or more of the direct or indirect ownership interests in Mortgagor or in any such subsidiary, affiliate, managing member, general partner, shareholder or other beneficial owner (A) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders, (B) is or will become a “blocked person” described in Section 1 of the Order or (C) knowingly engages or will engage in any dealings or transactions, or is or will be otherwise associated, with any such blocked person. No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the Foreign Corrupt Practices Act of 1977, as amended. Mortgagor shall promptly notify Mortgagee should Mortgagor become aware of any information which would render untrue any of the representations, warranties or covenants set forth in this Section 2.08 .

2.09 Federal Reserve Board Regulations . No part of the proceeds of the Loan will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve Mortgagor in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute 25% or more than the value of the consolidated assets of Mortgagor and its subsidiaries, if any, and Mortgagor does not have any present intention that margin stock will constitute 25% or more of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

2.10 Investment Company Act and Public Utility Holding Company Act . Neither Mortgagor, nor any subsidiary of Mortgagor, if any, is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the Federal Power Act as amended.

2.11 Exempt Status of Transactions Under Securities Act and Representations Relating Thereto . Neither Mortgagor, nor anyone acting on its behalf, has (a) solicited offers to make all or any part of the Loan, from more than 35 Persons or (b) otherwise approached, negotiated or communicated with more than 35 Persons regarding the making of all or any part of the Loan by such Person(s). Neither Mortgagor, nor anyone acting on its behalf has taken, or will take, any action that would subject the making of the Loan to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

 

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2.12 ERISA .

(A) Neither Mortgagor nor any entity that holds a direct or indirect interest in Mortgagor (a “ Constituent Entity ”) is or shall be (i) an employee benefit plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ ERISA ”) regardless of whether such plan is actually subject to ERISA, (ii) a plan to which Internal Revenue Code Section 4975 applies, or (iii) an entity the underlying assets of which include ERISA “plan assets” by reason of a plan’s investment in the entity (e.g., insurance company general or separate account; bank commingled fund).

(B) Transactions by or with Mortgagor are not and will not be subject to any Legal Requirements regulating investments of and fiduciary obligations with respect to an employee benefit plan (within the meaning of Section 3(3) of ERISA), regardless of whether such plan is actually subject to ERISA.

(C) Any liability or obligation that Mortgagor (or any Constituent Entity) may have in respect of an employee benefit plan as defined in Section 3(3) of ERISA regardless of whether such plan is actually subject to ERISA has been and shall continue to be satisfied in full.

2.13 Material Agreements . Mortgagor represents and warrants that (A) the Material Agreements are in full force and effect; (B) all amounts due and payable by Mortgagor under the Material Agreements have been paid; (C) to Mortgagor’s best knowledge, there is no existing default or breach of any covenant or condition on the part of any Mortgagor or any other party under any Material Agreement; (D) to Mortgagor’s best knowledge, no other party to a Material Agreement has any defense, set-off or counterclaim against Mortgagor; and (E) there are no amendments of or modifications to any Material Agreements except as disclosed in writing to Mortgagee.

ARTICLE 3

DEFAULTS

3.01 Events of Default . The existence of any of the following circumstances shall be deemed an “Event of Default” pursuant to this Mortgage, without cure or grace period unless expressly otherwise provided herein:

(A) if Mortgagor fails to pay any portion of the Obligations as and when the same shall become due and payable as provided in the Loan Instruments; or

(B) if Mortgagor fails to perform or observe any other term, provision, covenant or agreement in the Loan Instruments and Mortgagor fails to cure same within twenty (20) days after written notice from Mortgagee to Mortgagor, provided that if such failure is of a curable nature, but not within twenty (20) days, such curative period shall be extended for an additional reasonable period of time, not to exceed an additional thirty (30) days, so long as Mortgagor has commenced during the initial twenty (20) day curative period, and diligently pursues to completion, appropriate curative action; or

(C) if any representation, warranty, certification, financial statement or other information made or furnished at any time pursuant to the terms of the Loan Instruments or otherwise, by or on behalf of Mortgagor, any Guarantor or any other Person liable for the

 

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Obligations, shall prove to be materially false and, if of a correctable nature, Mortgagor fails to correct same within twenty (20) days after written notice from Mortgagee to Mortgagor, provided that if same is of a curable nature, but not within twenty (20) days, such curative period shall be extended for an additional reasonable period of time, not to exceed an additional thirty (30) days, so long as Mortgagor has commenced during the initial twenty (20) day curative period, and diligently pursues completion, appropriate curative action; or

(D) if Mortgagor shall:

(1) apply for, consent to or acquiesce in the appointment of a receiver, trustee or liquidator of Mortgagor or of all or any part of Mortgagor’s assets or the Secured Property or any interest in any part thereof (the term “acquiesce” includes the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within ten (10) days after the appointment); or

(2) commence a voluntary case or other proceeding in bankruptcy, or admit in writing its inability to pay its debts as they come due; or

(3) make a general assignment for the benefit of creditors; or

(4) file a petition or an answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future bankruptcy code or any other statute or law relating to bankruptcy, insolvency or other relief for debtors; or

(5) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency case or proceeding; or

(E) if a court of competent jurisdiction enters an order for relief against Mortgagor under any present or future bankruptcy code or any other statute or law relating to bankruptcy, insolvency or other relief for debtors, which order shall continue unstayed and in effect for any period of sixty (60) consecutive days; or

(F) if a court of competent jurisdiction enters an order, judgment or decree adjudicating Mortgagor insolvent, approving a petition seeking reorganization or arrangement of Mortgagor or appointing a receiver, custodian, trustee or liquidator of Mortgagor or of all or any part of Mortgagor’s assets or the Secured Property or any interest in any part thereof, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; or

(G) if Mortgagor assigns or purports to assign the whole or any part of the Rents arising from the Secured Property or any part thereof without the prior written consent of Mortgagee; or

(H) if a Transfer shall occur without the prior written consent of Mortgagee; or

 

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(I) if Mortgagor shall be in default beyond any applicable grace period pursuant to any other mortgage, security instrument or other agreement affecting Mortgagor or any substantial part of its assets or all or any part of the Secured Property; or

(J) if any mechanic’s, laborer’s or materialman’s lien, federal tax lien, broker’s lien or other lien not permitted hereunder and affecting the Secured Property or any part thereof is not discharged, by payment, bonding, order of a court of competent jurisdiction or otherwise, within twenty (20) days after Mortgagor receives notice thereof from the lienor or from Mortgagee; or

(K) if any of the events described in Section 3.01(D) , Section 3.01(E) and/or Section 3.01(F) shall occur in respect of any Guarantor; or

(L) if a default by any Guarantor or other Person (other than Mortgagee), including a default under any Financial Covenant (as defined in the Guaranty), shall occur under any guaranty, indemnity agreement, or other instrument which it has executed in connection with the Loan; or

(M) if any Guarantor shall contest, repudiate or purport to revoke any guaranty, indemnity agreement or other instrument which it has executed in connection with the Loan for any reason or if any such guaranty, indemnity or other instrument shall cease to be in full force and effect as to the Guarantor or shall be judicially declared null and void as to the Guarantor, or if any Guarantor shall be liquidated, dissolved or wound-up; or

(N) if a default by Mortgagor occurs beyond any applicable notice or cure periods (if any) under any Material Agreement (except, with respect to the Tax Exemption Documents, matters that are being contested by Mortgagor pursuant to Section 1.02(H) ); or

(O) if any Material Agreement is terminated or cancelled by Mortgagor or if Mortgagor accepts a surrender or modification of any Material Agreement without the prior written consent of Mortgagee; or

(P) if any Lease Termination Fee or Lease Guaranty Payment is not paid directly to Mortgagee or deposited with Mortgagee upon Mortgagor’s receipt thereof.

ARTICLE 4

REMEDIES

4.01 Acceleration, Foreclosure, etc . Upon the happening of any Event of Default, Mortgagee may, at its sole option, declare the entire unpaid balance of the Obligations, including, the Make-Whole Amount and any other prepayment charges, if any, due pursuant to any Loan Instrument, immediately due and payable without notice or demand, provided, however, simultaneously with the occurrence of an Event of Default under Section 3.01(D) , 3.01(E) or 3.01(F) , and without the necessity of any notice or other action by the Mortgagee, all Obligations shall automatically become and be due and payable, without notice or demand. In addition, upon the

 

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happening of any Event of Default, Mortgagee may, at its sole option, without further delay, undertake any one or more of the following or exercise any other remedies available to it under applicable law or equity:

4.01A. Foreclosure . Institute an action, judicial or otherwise, to foreclose this Mortgage, or take such other action as may be allowed at law or in equity, for the enforcement hereof and realization on the Secured Property or any other security which is herein or elsewhere provided for, or proceed thereon through power of sale or to final judgment and execution thereon for the entire unpaid balance of the Obligations, including interest at the rate specified in the Loan Instruments to the date of the Event of Default and thereafter at the Increased Rate, and all other sums secured by this Mortgage, including all attorneys’ fees and expenses, costs of suit and other collection costs, interest at the Increased Rate on any judgment obtained by Mortgagee from and after the date of any sale of the Secured Property (which may be sold in one parcel or in such parcels, manner or order as Mortgagee shall elect) until actual payment is made of the full amount due Mortgagee pursuant to the Loan Instruments, any law, usage or custom to the contrary notwithstanding.

4.01B. Partial Foreclosure . Mortgagee shall have the right to foreclose the lien hereof to satisfy payment and performance of any part of the Obligations from time to time. If an Event of Default exists as to the payment of any part of the Obligations, as an alternative to the right of foreclosure to satisfy payment of the Obligations after acceleration thereof, to the extent permitted by applicable law, Mortgagee may institute partial foreclosure proceedings (“ Partial Foreclosure ”) with respect to the portion of the Obligations as to which the Event of Default exists, as if under a full foreclosure, and without declaring the entire unpaid balance of the Obligations due. If Mortgagee institutes a Partial Foreclosure, Mortgagee may sell, from time to time, such part or parts of the Secured Property as Mortgagee, in its discretion, deems appropriate, and may make each such sale subject to the continuing lien of this Mortgage for the remainder, from time to time, of the Obligations. No Partial Foreclosure, if so made, shall in any manner affect the remainder, from time to time, of the Obligations or the priority of this Mortgage. As to such remainder, this Mortgage and the lien hereof shall remain in full force and effect as though no foreclosure sale had been made pursuant to the provisions of this Section 4.01B . Notwithstanding the filing of any Partial Foreclosure or the entry of a decree of sale therein, Mortgagee may elect, at any time prior to any Partial Foreclosure, to discontinue such Partial Foreclosure and the acceleration of the Obligations by reason of any Event of Default upon which such Partial Foreclosure was predicated, and to proceed with full foreclosure proceedings. Mortgagee may commence a Partial Foreclosure, from time to time, as to any part of the Obligations without exhausting the right of full foreclosure or Partial Foreclosure for any other part of the Obligations as to which such Partial Foreclosure shall not have occurred.

4.01C. Entry . Mortgagee personally, or by its agents or attorneys, may enter all or any part of the Secured Property, and may exclude Mortgagor, its agents and servants wholly therefrom without liability for trespass, damages or otherwise. Mortgagor shall surrender possession of the Secured Property to Mortgagee on demand after the happening of any Event of Default. Thereafter, Mortgagee may use, operate, manage and control the Secured Property and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers. Upon each such entry, Mortgagee, at the expense of Mortgagor from time to time, either by purchase, repairs or construction, may maintain and restore the Secured Property, may complete the construction of the Improvements and in the course of such

 

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completion may make such changes in the contemplated or completed Improvements as Mortgagee may deem desirable and may insure the same. At the expense of Mortgagor, Mortgagee may make, from time to time, all necessary or desirable repairs, renewals and replacements and such alterations, additions, betterments and improvements thereto and thereon as Mortgagee may deem advisable. In each of the circumstances described in this Section 4.01C , Mortgagee shall have the right to manage and operate the Secured Property and to carry on the business thereof and exercise all rights and powers of Mortgagor with respect thereto, either in the name of Mortgagor or otherwise as Mortgagee shall deem best.

4.01D. Collection of Rents, etc . Mortgagee may collect and receive all Rents. Mortgagee may deduct, from the monies so collected and received, all expenses of conducting the business of the Secured Property and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments and improvements and amounts necessary to pay for Impositions, insurance, taxes and assessments, liens or other charges upon the Secured Property or any part thereof, as well as reasonable compensation for the services of Mortgagee and for all attorneys, agents, clerks, servants, and other employees engaged and employed by Mortgagee. After such deductions and the establishment of all reasonable reserves, Mortgagee shall apply all such monies to the payment of the unpaid Obligations. Mortgagee shall account only for Rents actually received by Mortgagee.

4.01E. Receivership . Mortgagee may have a receiver appointed to enter into possession of the Secured Property, collect the Rents therefrom and apply the same as the court may approve. Mortgagee may have a receiver appointed, as a matter of right without notice and without the necessity of proving either the inadequacy of the security provided by this Mortgage or the insolvency of Mortgagor or any other Person who may be legally or equitably liable to pay the Obligations. Mortgagor and each such Person, presently and prospectively, waive such proof and consent to the appointment of such receiver. If Mortgagee or any receiver collects the Rents, the monies so collected shall not be substituted for payment of the Obligations, nor can they be used to cure an Event of Default, without the prior written consent of Mortgagee. Mortgagee shall not be liable to account for Rents not actually received by Mortgagee.

4.01F. Specific Performance . Mortgagee may institute an action for specific performance of any covenant contained herein or in aid of the execution of any power herein granted.

4.01G. Recovery of Sums Required to be Paid . Mortgagee may, from time to time, take action to recover any sum or sums which constitute a part of the Obligations as such sums shall become due, without regard to whether or not the remainder of the Obligations shall be due, and without prejudice to the right of Mortgagee thereafter to bring an action of foreclosure or any other action for each Event of Default existing from time to time.

4.01H. Other Remedies . Mortgagee may take all actions permitted under the Uniform Commercial Code of the State and may take any other action, or pursue any other right or remedy, as Mortgagee may have under applicable law, and Mortgagor does hereby grant such rights to Mortgagee.

 

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4.01I. Compliance with Laws . The provisions of this Mortgage are intended to comply, and to be read together with, the laws of the State. Where applicable law is contrary to the provisions of this Mortgage, such applicable law shall prevail if and only to the extent such applicable law is mandatory by its terms, it being the express intent of the parties that any contrary legal authority that is permissive is hereby knowingly and voluntarily waived by the parties as set forth in the covenants, terms and conditions of this Mortgage.

4.02 No Election of Remedies . Mortgagee may, in its discretion, exercise all or any of the rights and remedies provided herein or in the other Loan Instruments, or which may be provided by statute, law, equity or otherwise, in such order and manner and from time to time, as Mortgagee shall elect without impairing Mortgagee’s lien, or rights pursuant to any of the Loan Instruments and without affecting the liability of any Person for the Obligations.

4.03 Mortgagee’s Right to Release, etc . Mortgagee may, in its discretion, from time to time, release (for such consideration as Mortgagee may require) any part of the Secured Property (A) without notice to, or the consent, approval or agreement of any other party in interest, (B) without, as to the remainder of the Secured Property, in any way impairing or affecting the validity or the lien of this Mortgage or any of the other Loan Instruments, or the priority thereof and (C) without releasing Mortgagor from any liability for any of the Obligations. Mortgagee may accept, by assignment, pledge or otherwise, any other property in place of any part of the Secured Property as Mortgagee may require without being accountable for so doing to any other lienor or other Person. To the extent permitted by law, neither Mortgagor, nor the holder of any lien or encumbrance affecting the Secured Property or any part thereof shall have the right to require Mortgagee to marshall assets.

4.04 Mortgagee’s Right to Remedy Defaults, etc . If Mortgagor defaults in the performance of any of the covenants or agreements contained in this Mortgage or any of its other obligations under the Loan Instruments, or if any action or proceeding is commenced which affects Mortgagee’s interest in the Secured Property or any part thereof, including, but not limited to, eminent domain, code enforcement, or proceedings of any nature whatsoever under any federal or state law, whether now existing or hereafter enacted or amended, relating to bankruptcy, insolvency, arrangement, reorganization or other form of debtor relief, then Mortgagee may, but without obligation to do so and without releasing Mortgagor from any obligation hereunder, cure such defaults, make such appearances, disburse such sums and/or take such other action as Mortgagee deems necessary or appropriate to protect Mortgagee’s interest, including disbursement of attorneys’ fees, entry upon the Secured Property to make repairs, payment of Impositions or insurance premiums or otherwise cure the default in question or protect the security of the Secured Property, and payment, purchase, contest or compromise of any encumbrance, charge or lien encumbering the Secured Property. Mortgagor further agrees to pay all expenses incurred by Mortgagee (including fees and disbursements of counsel) pursuant to this Section 4.04 , including those incident to the curing of any default and/or the protection of the rights of Mortgagee hereunder, and enforcement or collection of payment of the Note or any future advances whether by judicial or nonjudicial proceedings, or in connection with any bankruptcy, insolvency, arrangement, reorganization or other debtor relief proceeding of Mortgagor, or otherwise. Any amounts disbursed by Mortgagee pursuant to this Section 4.04 shall be additional indebtedness of Mortgagor secured by this Mortgage as of the date of disbursement and shall bear interest at the Increased Rate from such date until paid by Mortgagor

 

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in full. All such amounts shall be payable by Mortgagor immediately without demand. Nothing contained in this Section 4.04 shall be construed to require Mortgagee to incur any expense, make any appearance, or take any other action and any action taken by Mortgagee pursuant to this Section 4.04 shall be without prejudice to any other rights or remedies available to Mortgagee pursuant to any Loan Instrument or at law or in equity.

4.05 Waivers . Mortgagor waives and releases (A) all benefits that might accrue to Mortgagor by virtue of any present or future laws exempting the Secured Property, or any part of the proceeds arising from any sale of the Secured Property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process or extension of time; (B) all benefits that might accrue to Mortgagor from requiring valuation or appraisal of any part of the Secured Property levied or sold on execution of any judgment recovered for the Obligations; (C) all notices not herein or in any other Loan Instrument specifically required as a result of Mortgagor’s default or of Mortgagee’s exercise, or election to exercise, any option pursuant to any of the Loan Instruments; and (D) all rights of redemption to the extent that Mortgagor may lawfully waive same. At no time will Mortgagor insist upon, plead or in any manner whatsoever claim or take any benefit or advantage of any stay or extension or moratorium law or any exemption from execution or sale of the Secured Property or any part thereof, whenever enacted, now or at any time hereafter in force, which may affect the covenants or terms of performance of the Loan Instruments. Similarly, Mortgagor will not claim, take or insist upon any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Secured Property or any part thereof, prior to any sale or sales thereof which may be made pursuant to any provision hereof, or pursuant to the decree, judgment or order of any court of competent jurisdiction. After any such sale or sales, to the extent permitted by law, Mortgagor shall not claim or exercise any right under any law or laws heretofore or hereafter enacted to redeem the property so sold or any part thereof. Mortgagor waives all benefits or advantages of any such law or laws, and covenants not to hinder, delay or impede the execution of any power herein granted or delegated to Mortgagee. Mortgagor shall suffer and permit the execution of every such power as though no such law or laws had been made or enacted. To the extent permitted by law, the Secured Property may be sold in one parcel, as an entirety, or in such parcels, manner or order as Mortgagee in its discretion may decide. To the extent permitted by law, neither Mortgagor nor the holder of any lien or encumbrance affecting the Secured Property or any part thereof may require Mortgagee to marshal assets.

4.06 Prepayment . Mortgagor shall pay the charge provided in the Note for prepayment of the Obligations if for any reason (including the acceleration of the due date of the Obligations by Mortgagee following the occurrence of an Event of Default) any of such Obligations shall be due and payable or paid prior to the stated maturity date thereof, whether or not such payment is made prior to or at any sale held pursuant to or by virtue of this Article 4 . Mortgagee has relied on Mortgagor’s creditworthiness and its agreement to repay the Obligations in strict accordance with the terms set forth in the Loan Instruments, and would not make the Loan without the promises by Mortgagor to make all payments due pursuant to the Loan Instruments and not to prepay all or any part of the principal balance of the Note prior to the final maturity date thereof, except on the terms expressly set forth herein and in the Note. Therefore, any prepayment of the Note, whether occurring as a voluntary prepayment by Mortgagor or occurring upon an acceleration of the Note by Mortgagee or otherwise, will prejudice Mortgagee’s ability to meet

 

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its obligations and to earn the return on the funds advanced to Mortgagor, which Mortgagee intended and expected to earn when it made the Loan, and will also result in other losses and additional expenses to Mortgagee. In consideration of Mortgagee making the Loan at the interest rate and for the term set forth in the Note, except as expressly permitted pursuant to the Note, Mortgagor expressly waives all rights it may have under applicable law to prepay, without charge or premium, all or any part of the Note, either voluntarily or upon an acceleration of the Note by Mortgagee, including an acceleration upon the making or suffering by Mortgagor of any transfer or disposition prohibited by Section 1.11 . If a prepayment of all or any part of the principal balance of the Note is made by or on behalf of Mortgagor, for any reason, whether due to the voluntary acceptance by Mortgagee of a prepayment tendered by Mortgagor, or the acceleration of the Note by Mortgagee, or in connection with any reinstatement of the Loan Instruments pursuant to any foreclosure proceedings, or any right of redemption exercised by Mortgagor or any other party having the right to redeem or to prevent any foreclosure of this Mortgage, or upon the consummation of any foreclosure sale, or under any other circumstances, Mortgagor or any other Person making any such prepayment shall be obligated to pay, concurrently therewith, if applicable, the Make-Whole Amount, as defined and as set forth in the Note, and the payment of the Make-Whole Amount shall be a condition to the making of such prepayment, and the payment of the Make-Whole Amount shall be secured by this Mortgage and the other Loan Instruments. Mortgagor shall pay the Make-Whole Amount without prejudice to the right of Mortgagee to collect any other amounts due pursuant hereto or to declare a default hereunder. Nothing herein shall be construed as permitting any partial prepayment of the Obligations, except with Mortgagee’s prior written consent thereto obtained in each instance.

ARTICLE 5

MISCELLANEOUS

5.01 Non-Waiver . The failure of Mortgagee to insist upon strict performance of any term of this Mortgage or any other Loan Instrument shall not be deemed to be a waiver of any term of this Mortgage or any other Loan Instrument. Mortgagor shall not be relieved of its obligation to pay and perform the Obligations, at the time and in the manner provided in the Loan Instruments, by reason of (A) a failure by Mortgagee to take any action to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage or of any other Loan Instrument (regardless of whether or not Mortgagor has requested Mortgagee to do so), (B) the release, regardless of consideration, of the whole or any part of the Secured Property or any other security for the Obligations, or (C) any agreement or stipulation between Mortgagee and any subsequent owner or owners of the Secured Property or any other Person extending the time of payment or otherwise modifying or supplementing the terms of this Mortgage or any other Loan Instrument, without first having obtained the consent of Mortgagor. Mortgagor shall pay and perform the Obligations at the time and in the manner provided in this Mortgage and the other Loan Instruments as so extended, modified or supplemented, unless expressly released and discharged by Mortgagee. Regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate lien, encumbrance, right, title or interest in or to the Secured Property, Mortgagee may release any Person at any time liable for the payment or performance of the Obligations, or any part thereof, or any part of the security held for the Obligations, and may extend the time of such payment or performance or otherwise modify the terms of any Loan Instrument, including a modification of the interest rate payable on the

 

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principal balance of the Note, without Mortgagor’s prior written consent and without in any manner impairing or affecting any of the Loan Instruments or the lien thereof or the priority of this Mortgage, as so extended and modified, as security for the Obligations over any such subordinate lien, encumbrance, right, title or interest. Mortgagee may resort for the payment and performance of the Obligations to any other security held by Mortgagee in such order and manner as Mortgagee, in its discretion, may elect. Mortgagee may take action to require payment and performance of the Obligations, or any part thereof, or to enforce any term of this Mortgage, without prejudice to the right of Mortgagee thereafter to foreclose this Mortgage. In addition to the rights and remedies stated in this Mortgage, Mortgagee may exercise every additional right and remedy now or hereafter afforded by law or in equity. Each right of Mortgagee pursuant to this Mortgage shall be separate, distinct and cumulative, and no such right shall be given effect to the exclusion of any other. No act of Mortgagee shall be construed as an election to proceed pursuant to any one provision of this Mortgage to the exclusion of any other provision.

5.02 Sole Discretion of Mortgagee . Whenever in this Mortgage or in any other Loan Instrument it provides that (A) Mortgagee exercises any right to approve or disapprove or to give or withhold its consent, (B) any arrangement or term is to be satisfactory to Mortgagee, or (C) any other decision or determination is to be made by Mortgagee, Mortgagee may give or withhold such approval or consent, determine whether or not such arrangement or term is satisfactory, and make all other decisions or determinations, in Mortgagee’s sole and absolute discretion, and Mortgagee’s decision shall be final and conclusive except where this Mortgage expressly provides to the contrary. If Mortgagor shall seek the consent or approval of Mortgagee pursuant to this Mortgage and Mortgagee shall fail or refuse to give such consent or approval, Mortgagor shall not be entitled to any damages for any withholding of such approval or consent by Mortgagee. Mortgagor’s sole remedy shall be an action for injunctive or declaratory relief, which remedy shall be available only in those cases where Mortgagee has expressly agreed not to unreasonably withhold its consent or approval.

5.03 Legal Tender . Mortgagor shall pay all payments of principal, interest or other amounts required or provided for herein in lawful money of the United States of America at the time of payment, at the above described office of Mortgagee or at such other place as Mortgagee may from time to time designate.

5.04 No Merger or Termination . If both the lessor’s and Lessee’s estates under any Lease or any portion thereof which constitutes a part of the Secured Property shall at any time become vested in one owner, this Mortgage and the lien created hereby shall not be destroyed or terminated by the application of the doctrine of merger and in such event, Mortgagee shall continue to have and enjoy all of its rights and privileges as to the separate estates. In addition, the foreclosure of this Mortgage shall not destroy or terminate any Lease or sublease then existing and created by Mortgagor, whether by application of the law of merger or as a matter of law or otherwise, unless Mortgagee or any purchaser at any sale related to such foreclosure shall so elect. No act by or on behalf of Mortgagee or any such purchaser shall constitute a termination of any Lease or sublease, unless Mortgagee or such purchaser shall give written notice thereof to the related Lessee or sublessee.

 

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5.05 Discontinuance of Actions . If Mortgagee shall enforce any right pursuant to this Mortgage by foreclosure, sale, entry or otherwise and discontinue or abandon such enforcement for any reason or any such proceedings shall have been determined adversely, then, in each such case, Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder, and the Secured Property shall remain subject to the lien of this Mortgage.

5.06 Headings . The headings of the Sections and other subdivisions of this Mortgage are for the convenience of reference only, are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms hereof.

5.07 Notice to Parties . All notices and demands or other communications hereunder shall be in writing, and shall be deemed to have been sufficiently given or served for all purposes when presented personally or sent by generally recognized overnight delivery service, with postage prepaid, addressed to Mortgagor or Mortgagee, as applicable, at the addresses stated below, or at such other address of which either Mortgagor or Mortgagee may hereafter notify the other in writing:

Mortgagor:

AMERICAN FINANCIAL EXCHANGE, L.L.C.,

PLAZA X URBAN RENEWAL ASSOCIATES L.L.C. and

PLAZA X LEASING ASSOCIATES L.L.C.

c/o Dividend Capital

518 17th Street, Suite 1700

Denver, Colorado 80202

Attn: General Counsel

with a copy to:

GREENBERG TRAURIG, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Attn: Steven E. Goldman

Mortgagee:

NEW YORK LIFE INSURANCE COMPANY

c/o New York Life Investment Management LLC

51 Madison Avenue

New York, New York 10010-1603

Attn:  Real Estate Group

          Director - Loan Administration Division

Loan No.: 374-0268

 

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with a copy to:

NEW YORK LIFE INSURANCE COMPANY

c/o New York Life Investment Management LLC

51 Madison Avenue

New York, New York 10010-1603

Attn:  Office of the General Counsel

Managing Director - Real Estate Section

Each notice or demand so given or served shall be deemed given and effective, (A) if personally delivered, on the day of actual delivery or refusal and (B) if sent by generally recognized overnight delivery service, on the next business day. Notwithstanding the foregoing, service of any notice of default or notice of sale provided or required by law shall, if mailed as required by law, be deemed given and effective on the date of mailing.

5.08 Successors and Assigns Included In Parties . Subject to the provisions of Section 1.11 , each reference herein to Mortgagor or Mortgagee shall mean and include, the heirs, legal representatives, successors and assigns of such Person. All covenants and agreements contained in this Mortgage by or on behalf of Mortgagor shall bind and inure to the benefit of Mortgagor’s heirs, legal representatives, successors and assigns, and all covenants and agreements by or on behalf of Mortgagee shall bind and inure to the benefit of Mortgagee’s successors and assigns.

5.09 Changes and Modifications . This Mortgage may only be changed or modified by an agreement in writing, signed by both Mortgagor and Mortgagee.

5.10 Applicable Law . This Mortgage shall be construed and enforced according to the law of the State, other than such law with respect to conflicts of laws.

5.11 Invalid Provisions to Affect No Others . The unenforceability or invalidity of any provision or provisions of this Mortgage as to any Persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other Persons or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.

5.12 Usury Savings Clause . Mortgagor and Mortgagee intend to conform strictly to the usury laws now or hereafter in force in the State and all interest payable pursuant to the Note, this Mortgage or any other Loan Instrument, unless exempt from such laws, shall be subject to reduction to the amount equal to the maximum non-usurious amount allowed pursuant to such usury laws as now or hereafter construed by the courts having jurisdiction over such matters. The aggregate of all interest (whether designated as interest, service charges, points or otherwise) contracted for, chargeable or receivable pursuant to the Note, this Mortgage or any other Loan Instrument shall under no circumstances exceed the maximum legal interest rate which Mortgagee may charge under applicable law from time to time. Any interest in excess of the maximum amount permitted by law shall be deemed a mistake and shall be canceled automatically and, if theretofore paid, Mortgagee shall, at its option, either rebate such interest to Mortgagor or credit such interest to the principal amount of the Obligations, or if all such principal has been repaid, Mortgagee shall rebate such excess to Mortgagor.

 

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5.13 No Statute of Limitations . To the full extent permitted by law, Mortgagor hereby waives the pleading of any statute of limitations as a defense to any or all of the Obligations.

5.14 Late Charges . If Mortgagor fails to pay, when due, without regard to any grace period, any installment of interest or principal, any payment due pursuant to Section 1.04 or any deposit or reserve due pursuant to this Mortgage or any other Loan Instrument, Mortgagor shall pay to Mortgagee the Late Charge as defined and described in the Note. Each such Late Charge, if not previously paid, shall, at the option of Mortgagee, be added to and become part of the succeeding monthly payment to be made pursuant to the Note, and shall be secured by this Mortgage.

5.15 Waiver of Jury Trial . Mortgagor waives any right to trial by jury with respect to any action or proceeding (a) brought by Mortgagor, Mortgagee or any other Person relating to (i) the Obligations or any understandings or prior dealings between Mortgagor and Mortgagee or (ii) the Loan Instruments, or (b) to which Mortgagee is a party.

5.16 Continuing Effectiveness . This Mortgage shall secure all advances made pursuant to the Loan Instruments, all rearrangements and renewals of the Obligations and all extensions as to the time of payment thereof, whether or not such advances, rearrangements, renewals or extensions are evidenced by new promissory notes or other instruments hereafter executed and irrespective of whether filed or recorded. The execution of this Mortgage shall not impair or affect any other security which may be given to secure the payment of the Obligations, and all such additional security shall be considered as cumulative. The taking of additional security, execution from time to time of partial releases as to the Secured Property or any extension of time of payment of the Obligations shall not diminish the force, effect or lien of this Mortgage, and shall not affect or impair the liability of any maker, surety or endorser for the payment of the Obligations.

5.17 Time of Essence . Time is of the essence as to Mortgagor’s performance of each provision of this Mortgage, the Note and the other Loan Instruments. Mortgagor agrees that where, by the terms of this Mortgage, the Note or any other Loan Instrument, a day is named or a time is fixed for the payment of any sum of money or the performance of any obligation by Mortgagor, the day and/or time stated enters into the consideration and is of the essence of the whole contract.

5.18 Non-Recourse . If an Event of Default has occurred (and regardless of whether or not it has been cured), Mortgagee shall have all rights provided in the Note, this Mortgage, the Pledge Agreement or any other Loan Instrument or at law or in equity, and shall have full recourse to the Secured Property, the Equity Collateral and to any other collateral given by Mortgagor, Pledgor or any other Person to secure any or all of the Obligations, provided that any judgment obtained by Mortgagee in any proceeding to enforce such rights shall be enforced only against the Secured Property, the Equity Collateral and such other collateral. Notwithstanding the foregoing, Mortgagee shall not in any way be prohibited from naming Mortgagor, Pledgor or any of their respective successors or assigns or any Person holding under or through them as parties to any actions, suits or other proceedings initiated by Mortgagee to enforce such rights or to foreclose the lien of this Mortgage or the Pledge Agreement or to otherwise realize upon any other lien or security interest created in any other collateral given to secure the payment of the

 

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Obligations. The foregoing restriction shall not apply to, and Mortgagor shall be personally liable for, and Mortgagee may seek and enforce judgment against Mortgagor for:

(A) any and all losses, claims, damages, costs, expenses and/or liabilities, including, attorneys’ fees and expenses, incurred by Mortgagee:

  (1) relating to or as a result of any material misstatement of fact (a) by Mortgagor or any Person constituting Mortgagor made to induce Mortgagee to advance the principal amount evidenced by the Note (including, but not limited to, in any reports, certificates or other documents prepared or caused to be prepared by Mortgagor and provided to Mortgagee) or (b) contained in any Loan Instrument,

 

  (2) relating to or as a result of fraud committed by Mortgagor or any Person constituting Mortgagor,

 

  (3) relating to or as a result of the collection or application of any insurance proceeds, condemnation awards, trust funds, tenant security deposits or Rents (including any Lease Termination Fee or Lease Guaranty Payment) in a manner which is not in accordance with the provisions of the Loan Instruments,

 

  (4) relating to or as a result of the breach of any representation or warranty contained in the Sections of this Mortgage pertaining to environmental matters, including Section 1.05E(4) , Section 2.03C or Section 2.03D , or any default with respect to any covenant contained in the Sections of this Mortgage pertaining to environmental matters including Section 1.05E ,

 

  (5) relating to or as a result of any default with respect to Mortgagor’s covenant to pay Impositions, pursuant to Section 1.02 hereof, or insurance premiums, pursuant to Section 1.03 hereof or with respect to Mortgagor’s covenant to obtain the insurance, including without limitation, the Terrorism Insurance, required by this Mortgage (unless Mortgagor has deposited escrows with Mortgagee in amounts sufficient to pay the same),

 

  (6)

arising from, in respect of, as a consequence of, or in connection with: (1) the existence of any circumstance or the occurrence of any action described in Section 1.05E(1) , (2) claims asserted by any Person (including any Governmental Agency) in connection with, or in any way arising out of, the presence, storage, use, disposal, generation, transportation or treatment of any Hazardous Material in, on, or under or about the Secured Property, (3) the violation or claimed violation of any law relating to any Hazardous Material or any other Environmental Requirement in regard to the Secured Property, regardless of whether or not such violation or claimed violation occurred prior to or after the date of this Mortgage or whether or not such violation or

 

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claimed violation occurred prior to or after the time that Mortgagor became the owner of the Secured Property, or (4) the preparation of any environmental audit as to the Secured Property, whether conducted or authorized by Mortgagor, Mortgagee or any other Person or the implementation of any such audit’s requirements in order for the Secured Property to comply with Environmental Requirements, and/or

 

  (7) as a result of any intentional, bad faith waste of the Secured Property committed by Mortgagor or its agents (such damages to include all repair costs incurred by Mortgagor);

(B) all outstanding principal, interest and other Obligations, including the Make-Whole Amount:

 

  (1) if there shall be a violation of Section 1.11 (Prohibition on Transfers, Liens or Further Encumbrances) or Section 5.20 (Single Purpose Entity) of this Mortgage (taking into account the last paragraph of Section 5.20 regarding inadvertent and immaterial violations); and/or

 

  (2) in the event that any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to or acquiesced in by Mortgagor or any Guarantor and/or if any proceeding for the liquidation, dissolution, receivership or other similar proceeding of Mortgagor or any Guarantor shall be instituted by Mortgagor or any Guarantor;

(C) in the event of a loss which is or would be covered by the required Terrorism Insurance, an amount equal to the deductible on such Terrorism Insurance which amount shall either be applied by Mortgagee to the debt secured by this Mortgage or disbursed by Mortgagee for the repair and restoration of the Secured Property, all in accordance with the terms of the Loan Instruments;

(D) in the event (a) the Schwab Lease is terminated or cancelled by Mortgagor or Mortgagor accepts a surrender of the Schwab Lease without Mortgagee’s prior written consent or (b) a default by Mortgagor occurs beyond any applicable notice or cure periods (if any) under the Schwab Lease and the tenant thereunder terminates or cancels the Schwab Lease, an amount equal to the rent and other amounts that would have been paid by such tenant had the Schwab Lease not been terminated, cancelled or surrendered; and/or

(E) in the event Mortgagor fails to make the full deposits or paydown of the Loan required under Section 3.3 of the Cash Management Agreement or Paragraph 6 of the Side Letter during any Extension Period (as defined in the Side Letter), an amount equal to any such unpaid deposits or paydown.

 

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The restriction on enforcement contained in the first sentence of this Section 5.18 shall not apply to the Environmental Indemnity Agreement of even date herewith executed by Mortgagor and the other indemnitors, if any, in favor of Mortgagee and/or to the obligations of any Guarantor. It is expressly understood and agreed, however, that nothing contained in this Section 5.18 shall (y) in any manner or way constitute or be deemed to be a release of the Obligations or otherwise affect or impair the enforceability of the liens, assignments, rights and security interests created by this Mortgage or any of the other Loan Instruments or any future advance or any related agreements or (z) preclude Mortgagee from foreclosing this Mortgage or from exercising its other remedies set forth in this Mortgage or the Assignment, or from enforcing any of its rights and remedies in law or in equity (including injunctive and declaratory relief, restraining orders and receivership proceedings), except as provided in this Section 5.18 . All matters described in clauses (A), (B), (C), (D) and (E) above as to which this Section 5.18 provides that Mortgagor is personally liable shall be referred to herein as the “ Non-Recourse Exceptions ”.

5.19 Non-Business Days . If any payment required hereunder or under any other Loan Instrument becomes due on a Saturday, Sunday, or legal holiday in the State, then such payment shall be due and payable on the immediately preceding business day.

5.20 Single Purpose Entity . Mortgagor represents, warrants and covenants that from and after the date hereof:

(A) Mortgagor will not own, either directly or indirectly, any asset or property other than (1) the Secured Property and (2) incidental personal property necessary for the ownership or operation of the Secured Property.

(B) Mortgagor will not engage in any business other than the ownership, management and operation of the Secured Property and Mortgagor will conduct and operate its business as presently conducted and operated.

(C) Mortgagor will not enter into any contract or agreement with any affiliate of Mortgagor, any constituent party of Mortgagor or any affiliate of any constituent party, except upon terms and conditions that are no less favorable than those that would be available on an arms-length basis with third parties other than any such party.

(D) Mortgagor will not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (1) the Obligations, and (2) trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances provided that such debt is paid within sixty (60) days of the date it is incurred. No indebtedness other than the Obligations may be secured (subordinate or pari passu ) by the Secured Property.

(E) Mortgagor will not make any loans or advances to any third party (including any affiliate or constituent party or any affiliate of any constituent party), or acquire obligations or securities of its affiliates or any constituent party.

 

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(F) Mortgagor will remain solvent to the extent of available cash flow from the Secured Property and Mortgagor will pay its debts and liabilities from its assets, as the same shall become due.

(G) Mortgagor will do all things necessary to observe organizational formalities and preserve its existence, and Mortgagor will not, nor will Mortgagor permit any constituent party, to amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation, bylaws, articles of organization, operating agreement, trust agreement or other organizational document of Mortgagor or such constituent party in a manner which would result in a breach of any of the representations, warranties or covenants set forth in this Section 5.20 or in a manner that would otherwise adversely affect Mortgagor’s single purpose status.

(H) Mortgagor will maintain all of its books, records, financial statements and bank accounts separate from those of any other Person, including, without limitation, its affiliates and any constituent party and Mortgagor will file its own tax returns, if any, although Mortgagor may file consolidated tax returns. Mortgagor shall maintain its books, records, resolutions and agreements as official records.

(I) Mortgagor will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any affiliate of Mortgagor, any constituent party of Mortgagor or any affiliate of any constituent party), shall maintain an arms’-length association with its affiliates, shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its affiliates as a division or part of the other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks to the extent its business requires the same.

(J) Mortgagor will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations to the extent of available cash flow from the Secured Property.

(K) Neither Mortgagor nor any constituent party will cause or permit the dissolution, winding up, liquidation, consolidation or merger in whole or in part, of Mortgagor.

(L) Mortgagor will not commingle the funds and other assets of Mortgagor with those of any affiliate or constituent party, or any other Person.

(M) Mortgagor will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or constituent party, or any other Person.

(N) Mortgagor will not hold itself out to be responsible for the debts or obligations of any other Person.

(O) Mortgagor shall (i) allocate fairly and reasonably any overhead and expense for office space shared with any affiliated Person, (ii) pay any liabilities, including salaries of its employees, out of its own funds and not from funds of any affiliated Person and/or (iii) maintain a sufficient number of employees (which may be zero) in light of its contemplated business operations.

 

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(P) Mortgagor shall have at least one (1) Independent Director and Mortgagor shall not, without the prior written consent of each such Independent Director institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of such proceedings against it, or file a petition seeking, or consent to, reorganization or relief, under any chapter of the Bankruptcy Code (Title 11 of the United States Code), as amended, or any other bankruptcy or similar laws, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or similar official of it or of a substantial part of its assets or property, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.

An inadvertent and immaterial failure to satisfy or comply with any one of the covenants contained in this Section 5.20 shall not, in and of itself, disqualify Mortgagor as a single purpose entity so long as under the circumstances in question, no Person would have a reasonable basis for asserting that Mortgagor is not a single purpose entity and Mortgagor takes all steps reasonably required in light of such failure to so satisfy or comply with such covenants in order to correct any known misunderstanding regarding Mortgagor’s status as a single purpose entity.

5.21 Non-consolidation Opinion . Mortgagor shall provide a non-consolidation opinion in form and substance and from counsel acceptable to Mortgagee, if requested by any assignee or participant of the Loan or, if necessary, in connection with a securitization of the Loan. Mortgagor shall be responsible for all costs incurred by Mortgagor and Mortgagee in connection with the preparation and review of any such opinion, including the reasonable out-of-pocket fees and disbursements of Mortgagee’s attorneys.

5.22 Joint and Several . The obligations of each Person and entity comprising Mortgagor shall be joint and several. The unenforceability or invalidity of any provision of this Mortgage as to any Person or circumstance shall not render that provision unenforceable or invalid as to any other Person or circumstance, and all provisions hereof, in all other respects, shall remain valid and enforceable.

ARTICLE 6

LOCAL LAW PROVISIONS

6.01 Principals of Construction . In the event of any inconsistencies between the terms and conditions of this Article 6 and the terms and conditions of this Mortgage, the terms and conditions of this Article 6 shall control and be binding.

6.02 Hazardous Substances . Mortgagor shall not conduct or cause or permit to be conducted on the Premises any activity which constitutes an Industrial Establishment (as such term is defined in the New Jersey Industrial Site Recovery Act, as amended (“ ISRA ”)) without the prior written consent of Mortgagee. In the event that the provisions of ISRA become applicable to the Premises subsequent to the date hereof, Mortgagor shall give prompt written notice thereof to Mortgagee and shall take immediate requisite action to insure compliance with

 

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ISRA. Mortgagor shall deliver to Mortgagee copies of all correspondence, notices and submissions that it sends to or receives from the New Jersey Department of Environmental Protection in connection with such ISRA compliance. Mortgagor’s obligation to comply with ISRA shall, notwithstanding its general applicability, also specifically apply to sale, transfer, closure or termination of operations associated with any foreclosure action respecting the Secured Property, including, without limitation, a foreclosure action brought with respect to this Mortgage.

6.03 Continuing Enforcement of Mortgage . If, after receipt of any payment of all or any part of the obligations under the Note, this Mortgage, and the other Loan Instruments, Mortgagee is compelled or agrees, for settlement purposes, to surrender such payment to any Person for any reason (including, without limitation, a determination that such payment is void or voidable as a preference or fraudulent conveyance, an impermissible setoff, or a diversion of trust funds), then this Mortgage and the other Loan Instruments shall continue in full force and effect, and Mortgagor shall be liable for, and shall indemnify, defend and hold harmless Mortgagee with respect to the full amount so surrendered. The provisions of this Section shall survive the cancellation or discharge of this Mortgage and shall remain effective notwithstanding the payment of the obligations, under the Note, this Mortgage and the other Loan Instruments, the cancellation of the Note, the release of any security interest, lien or encumbrance securing the obligations under the Note, this Mortgage and the other Loan Instruments, or any other action which Mortgagee may have taken in reliance upon its receipt of such payment. Any cancellation, release or other such action by Mortgagee shall be deemed to have been conditioned upon any payment of the obligations under the Note, this Mortgage and the other Loan Instruments, having become final and irrevocable.

6.04 Freshwater Wetlands . Mortgagor hereby represents and warrants to Mortgagee that, to the best of Mortgagor’s knowledge, the Secured Property is not located within a “freshwater wetlands” or a “transition area”, each as defined by N.J.S.A. 13:9B-3, and is not subject to the terms of the New Jersey Freshwater Wetlands Protection Act, as amended, N.J.S.A. 13:9B-1 et. seq., or the rules and regulations promulgated thereunder.

6.05 Modification of Mortgage . This Mortgage is subject to “modification” as such term is defined in P.L. 1985 c.353 (N.J.S.A. 46:9-8.l et. seq.) and shall be subject to the priority provisions thereof.

6.06 No Credit for Tax Paid . Mortgagor waives any right it may have to a credit against interest due under the Obligations secured by this Mortgage pursuant to N.J.S.A. 54:4-33.

6.07 Receipt of Copy . Mortgagor hereby acknowledges receipt of a true copy of this Mortgage without charge.

[SIGNATURE ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF , Mortgagor has executed this Mortgage as of the date first above written.

 

AMERICAN FINANCIAL EXCHANGE, L.L.C.,
a New Jersey limited liability company
By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory
PLAZA X URBAN RENEWAL ASSOCIATES L.L.C.,
a New Jersey limited liability company
By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory
PLAZA X LEASING ASSOCIATES L.L.C.,
a New Jersey limited liability company
By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory


ACKNOWLEDGMENT

 

STATE OF NEW YORK   )
  ) SS:
COUNTY OF NEW YORK   )

BE IT REMEMBERED that on this          day of June, 2010, Greg M. Moran, an authorized signatory of American Financial Exchange, L.L.C., a New Jersey limited liability company, personally appeared before me, the undersigned, and thereupon acknowledged, under oath, to my satisfaction, that he is the person who executed the within instrument; that he was authorized to execute the within instrument on behalf of such entity and that he executed the within instrument as the voluntary act and deed of such entity for the purposes therein expressed.

 

 

Notary Public
My Commission Expires:
[seal]


ACKNOWLEDGMENT

 

STATE OF NEW YORK   )
  ) SS:
COUNTY OF NEW YORK   )

BE IT REMEMBERED that on this          day of June, 2010, Greg M. Moran, an authorized signatory of Plaza X Urban Renewal Associates L.L.C., a New Jersey limited liability company, personally appeared before me, the undersigned, and thereupon acknowledged, under oath, to my satisfaction, that he is the person who executed the within instrument; that he was authorized to execute the within instrument on behalf of such entity and that he executed the within instrument as the voluntary act and deed of such entity for the purposes therein expressed.

 

 

Notary Public
My Commission Expires:
[seal]


ACKNOWLEDGMENT

 

STATE OF NEW YORK   )
  ) SS:
COUNTY OF NEW YORK   )

BE IT REMEMBERED that on this          day of June, 2010, Greg M. Moran, an authorized signatory of Plaza X Leasing Associates L.L.C., a New Jersey limited liability company, personally appeared before me, the undersigned, and thereupon acknowledged, under oath, to my satisfaction, that he is the person who executed the within instrument; that he was authorized to execute the within instrument on behalf of such entity and that he executed the within instrument as the voluntary act and deed of such entity for the purposes therein expressed.

 

 

Notary Public
My Commission Expires:
[seal]


Schedule A

ALL that certain lot, parcel or tract of land, situate and lying in the City of Jersey City, County of Hudson and State of New Jersey being more particularly described as follows:

PARCEL ONE:

Beginning at a point on the southerly side of Second Street Extension (52' wide) said point being the following two (2) courses along said southerly side of Second Street Extension (52' wide) as extended, from its intersection with the easterly side of Hudson Street (62' wide) as extended, and running; thence

a. South 83 degrees 50 minutes 02 seconds East 195.11 feet to a bend; thence

b. South 84 degrees 47 minutes 48 seconds East 102.62 feet to a point of beginning and running; thence

1. South 84 degrees 47 minutes 48 seconds East 35.65 feet along the southerly side of Second Street Extension (52' wide) to a point of curvature; thence

2. Along a curve to the right having a radius of 50.00 feet, an arc length of 60.93 feet (chord which bears South 49 degrees 53 minutes 06 seconds East 57.23 feet) to a point of reverse curvature; thence

3. Along a curve to the left having a radius of 60.00 feet, an arc length of 160.03 feet along the easterly terminus of Second Street Extension (chord which bears North 88 degrees 37 minutes 11 seconds East 116.64 feet) to a point on curve, thence

4. South 83 degrees 50 minutes 02 seconds East 98.17 feet to a point; thence

5. South 06 degrees 09 minutes 58 seconds West 23.06 feet to a point on curve; thence

6. Southerly along a curve to the right having a radius of 502.36 feet, an arc length of 195.70 feet (chord which bears South 00 degrees 42 minutes 02 seconds West 194.47 feet) to a point on curve; thence

7. North 87 degrees 59 minutes 06 seconds West 204.55 feet to a point; thence

8. North 75 degrees 59 minutes 06 seconds West 120.02 feet to a point; thence

9. North 08 degrees 00 minutes 54 seconds East 231.23 feet to the point of beginning.

Being known as proposed Lot 35.01 in Block 15 as shown on a certain map entitled “Proposed Subdivision of Lots 35 & 36 in Block 15 and Lots 6 & 18 in Block 10 prepared for Mack-Cali Realty Corp. in the City of Jersey City, Hudson County, New Jersey” prepared by John Zanetakos Associates, Inc., dated January 30, 2001 and labeled Job No. 00-7628-300, and filed in the Hudson County Clerk’s office on August 29, 2001 as map number 3813.

FOR INFORMATIONAL PURPOSES ONLY: Also known as Lot 48 in Block 15 on the City of Jersey City Tax Map.

TOGETHER WITH the easements granted to American Financial Exchange, L.L.C., or its predecessor-in-interest, in the Reciprocal Operation and Easement Agreement for The Harborside Financial Center,

 

Loan No.: 374-0268 /Mortgage  


dated December 4th, 1995, recorded December 7th, 1995 in Deed Book 4936, Page 001, as same was amended by First Amendment, recorded October 18, 1996 in Deed Book 5055, page 164 and as amended by Second Amendment, recorded January 10, 2001 in Deed Book 5739, page 284, and in that certain Covenant and Restriction Agreement (governed by the above Reciprocal Operation and Easement Agreement and amendments), recorded October 07, 2003 in Deed Book 7147, page 292.

TOGETHER WITH the easements granted to American Financial Exchange L.L.C. in the Cross Reciprocal Easement Agreement between and among American Financial Exchange L.L.C., Plaza VIII & IX Associates L.L.C., and Cali Harborside (Fee) Associates L.P., dated September 29, 2003 and recorded on October 7, 2003 in the Hudson County Register’s Office in Deed Book 7147, at page 157.

PARCEL TWO:

Beginning at a point in the dividing line between Lot 48 in Block 15 as shown on the City of Jersey City Tax Assessment to the south and Lot 30 in Block 15 (Tax Map) to the north, said point of beginning being S 83 degrees 50 minutes 02 seconds E, 48.53 feet along the dividing line between Lots 48 and 30 in Block 15 (Tax Map) from its intersection with the easterly line of Second Street Extension and running; thence

1. N 06 degrees 09 minutes 58 seconds E 1.66 feet to a point; thence

2. S 83 degrees 54 minutes 00 seconds E 50.74 feet to a point; thence

3. S 05 degrees 35 minutes 27 seconds W 23.12 feet to a point on curve; thence

4. Southerly along a curve to the right having a radius of 694.85 feet an arc length of 136.45 feet, a central angle of 11 degrees 15 minutes 06 seconds and a chord which bears S 04 degrees 19 minutes 57 seconds E 136.23 feet to a point of compound curvature; thence

5. Southerly along a curve to the right having a radius of 395.13 feet, an arc length of 60.77 feet, a central angle of 08 degrees 48 minutes 42 seconds and a chord which bears S 05 degrees 41 minutes 57 seconds W 60.71 feet to a point on curve; thence

6. N 87 degrees 59 minutes 06 seconds W 8.16 feet along the easterly extension of the dividing line between Lots 48 and 49 in Block 15 (Tax Map); thence the following three (3) courses along the easterly line of Lot 48 in Block 15 (Tax Map)

7. Northerly along a curve to the left having a radius of 502.36 feet, an arc length of 195.70 feet, a central angle of 22 degrees 19 minutes 15 seconds and a chord which bears N 00 degrees 42 minutes 02 seconds E 194.47 feet to a point on curve; thence

8. N 06 degrees 09 minutes 58 seconds E 23.06 feet to a point on curve; thence

9. N 83 degrees 50 minutes 02 seconds W 49.64 feet to a point, the point and place of beginning.

FOR INFORMATIONAL PURPOSES ONLY: Also known as Lot 30 in Block 15 on the City of Jersey City Tax Map.

Exhibit 10.5.1

NEW YORK LIFE INSURANCE COMPANY

51 MADISON AVENUE

NEW YORK, NEW YORK 10010

June 25, 2010

 

 

AMERICAN FINANCIAL EXCHANGE, L.L.C.

PLAZA X URBAN RENEWAL ASSOCIATES L.L.C.

PLAZA X LEASING ASSOCIATES L.L.C.

c/o Dividend Capital Total Realty Trust

518 17th Street, Suite 1700

Denver, Colorado 80202

Attn: General Counsel

Re:       Loan No. 374-0268 (“Loan”) from New York Life Insurance Company (“ Lender ”) to American Financial Exchange, L.L.C., Plaza X Urban Renewal Associates L.L.C. and Plaza X Leasing Associates L.L.C., each a New Jersey limited liability company (collectively, “ Borrower ”), and the promissory note (“ Note ”) and mortgage (“ Mortgage ”) executed in connection therewith

Ladies and Gentlemen:

In connection with the Loan and in accordance with your request, this is to advise you that:

1. Monthly Escrows for Taxes and Insurance Premiums. Prior to December 10, 2016 (the “ Initial Term ”), Lender agrees to waive the obligations and requirements imposed upon Borrower by Section 1.04 (Escrow Deposits) of the Mortgage for the payment to Lender each month of tax and insurance deposits on the condition that:

 

  (a) Borrower pays all real estate taxes, assessments and similar charges as they become due and before they become delinquent,

 

  (b) Borrower pays all insurance premiums at least ten (10) days before the expiration date of any policy or policies required under the Mortgage, to the extent that Borrower has been invoiced for such premiums, but in any case, notwithstanding the foregoing, Borrower shall not permit any such policy to lapse,

 

  (c) Borrower promptly submits to Lender’s Real Estate Department evidence of the timely payment of such real estate taxes, assessments and similar charges and receipts evidencing the timely payment of insurance premiums,

 

  (d) the Debt Coverage Ratio, as determined by Lender, is at least 1.50, and


  (e) Borrower pays to Lender on the date hereof a one-time administrative fee of $3,000 for monitoring Borrower’s compliance with its obligation to pay Impositions and insurance premiums.

2. Borrower Financial Statements . Lender agrees to allow Borrower to submit annual financial statements prepared and certified by an authorized officer or other authorized party of Borrower in lieu of requiring that such annual financial statements be certified by an independent certified public accountant as required by Section 1.06A. of the Mortgage, provided that Borrower furnishes to Lender the financial statements required by such Section within one hundred twenty (120) days after the end of each fiscal year of Borrower. Such certification by an authorized officer or other authorized party of Borrower must specifically state that the financial statements being submitted were prepared in accordance with generally accepted accounting principles relating to real estate consistently applied and that the information contained therein is true and correct and accurately represents the financial position of the Secured Property.

3. Guarantor Financial Statements . Lender agrees to allow Dividend Capital Total Realty Trust Inc., a Maryland corporation (“ TRT ”) and Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership (“ TROP ”, and together with TRT, “ Guarantor ”) to submit annual consolidated financial statements certified by an authorized officer or other authorized party of such Guarantor in lieu of requiring that such annual financial statements be certified by an independent certified public accountant as required by Section 1.11 of that certain Guaranty of even date herewith, executed by Guarantor in favor of Lender (the “ Guaranty ”), provided that each of TRT and TROP furnishes to Lender the financial statements required by such Section within one hundred twenty (120) days after the end of each fiscal year of TRT and TROP. Such certification by an authorized officer or other authorized party of each of TRT and TROP must specifically state that the financial statements being submitted were prepared in accordance with generally accepted accounting principles, consistently applied and that the information contained therein is true and correct and accurately represents the financial position of each of TRT and TROP.

4. One Time Right to Transfer Property or Transfer all Equity Interests in Borrower .

4.1 Transfer Conditions. Notwithstanding the provisions of Section 1.11 of the Mortgage, Lender agrees to allow Borrower to transfer or sell the entire Secured Property (or in lieu thereof, permitting the owners of Borrower to transfer or sell their entire ownership interests in Borrower) one time, and one time only, subject to Lender’s prior written consent, which consent shall not be unreasonably withheld, provided that Lender receives at least thirty (30) days prior written notice of the proposed sale or transfer together with the Required Documentation (as hereinafter defined) and that at the time of the sale or transfer:

 

  (a) No Event of Default has occurred and is continuing under any of the Loan Documents and no event exists which, with the giving of notice or lapse of time, or both, would constitute such an Event of Default.

 

  (b) Lender is paid a fee equal to three quarters of one percent (0.75%) of the then outstanding principal balance of the Loan;

 

2


  (c) the proposed transferee and/or its principal(s) have or control assets having, a minimum net worth of $750,000,000.00 and executes an agreement affirming all of the financial covenants and conditions contained in Sections 1.15, 1.16 and 1.17 of the Guaranty;

 

  (d) the Debt Coverage Ratio, as determined by Lender, is not less than 1.75, which ratio can be satisfied by making a partial prepayment of the Loan (subject to payment of the Make-Whole Amount (as defined in the Note));

 

  (e) the proposed transferee and/or its principal(s) has experience, acceptable to Lender, in owning and operating properties similar to the Secured Property and at the time of transfer owns and/or manages at least 2,500,000 square feet of commercial real estate, including no less than 1,000,000 square feet of office space;

 

  (f) the proposed transferee and its general partner(s) or managing member(s), if any, each is a bankruptcy remote, single purpose, single asset entity; the Secured Property will be the only asset and real property owned by or which has ever been or will ever be owned by the proposed transferee; the only asset owned by or which has ever been or will ever be owned by any general partner or managing member of the proposed transferee is such general partner’s or managing member’s interest in Borrower; the proposed transferee (and its general partner(s) or managing member(s)) will not have engaged and will not engage in any business other than owning (indirectly in the case of any general partner or managing member) and operating the Secured Property; and the ownership structure and organizational documents of the proposed transferee and of its general partner(s) or managing member(s) shall be in form and substance acceptable to Lender, shall require an independent director and shall contain, among other things, acceptable restrictions on such entities’ purpose and ability to incur indebtedness, “separateness covenants” and such other bankruptcy-remote, single purpose provisions that Lender may require;

 

  (g) the proposed transferee, if it takes title to the Secured Property, assumes all obligations of Borrower under the Loan Instruments (except side letters or other agreements, if any, which are personal to and intended to benefit only the original Borrower), pursuant to an assumption agreement in form and content acceptable to Lender, which includes representations and warranties substantially equivalent to those set forth in the Loan Instruments (exclusive of any modifications thereto set forth in this or other side letters, if any, which are “personal” to the original Borrower) relating to compliance with OFAC or other statutes or regulations covered by Section 2.08 of the Mortgage and any similar regulations or statutes and the Employee Retirement Income Security Act of 1974, as same may have been amended, and with respect to being an SPE, bankruptcy remote borrower;

 

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  (h) the proposed transferee executes and/or delivers all documents evidencing or relating to the assumption required by Lender, including, but not limited to:

 

  (i) an Environmental Indemnity Agreement and Pledge and Security Agreement in Lender’s then current form,

 

  (ii) evidence of proper corporate (or other appropriate) authority,

 

  (iii) an endorsement to Lender’s title policy updating the effective date to the date of the transfer with no additional title exceptions, reflecting the proposed transferee as the title holder, and otherwise in form and substance acceptable to Lender,

 

  (iv) new and amended financing statements (which shall be filed in the appropriate offices);

 

  (v) the proposed transferee’s certification of its legal name, type of organization, federal tax identification number, place of business, or if the proposed transferee has more than one place of business, its chief executive office, its mailing address and its organizational identification number or certification that it does not have an organizational identification number; and

 

  (vi) if requested by Lender, a non-consolidation opinion in form and substance acceptable to Lender.

 

  (i) neither the proposed transferee, nor any of its constituent entities, nor any person or entity affiliated with either the proposed transferee or any of its constituent entities:

 

  (i) has held an ownership interest in real property that was collateral for any loan made by Lender and/or any of its affiliates (each a “ NYL Loan ”) that was sold at a foreclosure or similar sale or transferred by deed in lieu thereof or as to which a foreclosure or similar sale proceeding was or is pending,

 

  (ii) has been in default, beyond the applicable cure period, if any, under a NYL Loan as a result of which the NYL Loan has been accelerated,

 

  (iii) in connection with a default under a NYL Loan, has entered into a modification, forbearance or similar agreement,

 

  (iv) is presently or at any time has been, the subject of any bankruptcy, reorganization, insolvency, debtor-creditor or other similar proceeding, or made an assignment for the benefit of creditors in connection with a NYL Loan, and/or

 

4


  (v) is a current or past litigant, opposing Lender, in any lawsuit brought against or by Lender;

 

  (j) additionally, neither the proposed transferee, nor any of its parent constituent entities (i) is presently or at any time has been the subject of any bankruptcy, reorganization, insolvency, debtor-creditor or other similar proceeding, or made an assignment for the benefit of creditors or (ii) has held an ownership interest in real property that was collateral for any loan that was sold at foreclosure or similar sale or transferred by deed in lieu thereof or as to which a foreclosure or similar sale proceeding was or is pending;

 

  (k) Lender’s then current form of guaranty of the Non-Recourse Exceptions, Environmental Indemnity Agreement, Cash Management Agreement and any and all other documents with respect to the deposits or paydown required in connection with the exercise of the first Extension Option (as hereinafter defined) and the second Extension Option, as applicable, are executed by one or more of the proposed transferee’s partner(s), member(s), shareholder(s), principal(s) or other transferee affiliated persons or entities as shall be designated by Lender and having a net worth satisfactory to Lender;

 

  (l) each of the (i) Schwab Lease, (ii) Citco Lease (as defined in the Cash Management Agreement), (iii) IPC Lease (as defined in the Cash Management Agreement), and (iv) Northern Trust Lease (as defined in the Cash Management Agreement), shall be in full force and effect (unless terminated with Lender’s prior written consent), unmodified (or if modified, such modification shall be in form and substance reasonably satisfactory to Lender), and shall not be subject to any rental offsets or concessions, or claims or defenses to its enforcement, or to any unpaid leasing brokerage commissions (collectively, the “ Rental Requirement ”);

 

  (m) the Secured Property shall continue to qualify for and enjoy the benefit of the existing Tax Exemption Documents (the “ Tax Exemption Requirement ”); and

 

  (n) all actual, out-of-pocket costs and expenses incurred by Lender (including legal fees) in connection with the transaction are paid by Borrower. Upon completion of the sale or transfer, Borrower shall provide to Lender all of the documents associated with the sale or transfer as may be requested by Lender. At Lender’s sole option, the Loan shall become immediately due and payable upon any other or further sale or transfer, unless such sale or transfer is consented to by Lender in writing or is otherwise permitted pursuant to this letter or the Loan Instruments without Lender’s consent.

4.2 Required Documentation. Borrower shall provide to Lender, at least thirty (30) days prior to the proposed sale or transfer, all information requested by Lender in connection with such sale or transfer (the “ Required Documentation ”), which may

 

5


include, without limitation, (a) a copy of the fully executed purchase and sale agreement, including all amendments thereto; (b) a description, including a chart, if appropriate, of the ownership structure of the proposed transferee and each of its principals; (c) copies of the organizational documents of the proposed transferee, its constituent entities and its principals; (d) a current financial statement for the proposed transferee and each of its principals, in sufficient detail to permit a determination of net worth for each of such entities; and (e) two (2) bank references for the proposed transferee and each of its principals. The Required Documentation shall also include a $30,000 non-refundable processing fee.

4.3 Release of Guarantor . Upon the satisfaction of all of the transfer conditions set forth in this Paragraph 4 , as evidenced by Lender’s consent to such transfer, Lender shall release Guarantor from all liability under the Guaranty and the Environmental Indemnity Agreement, except for any obligation or liability arising or accruing prior to the transfer date and except for any obligation or liability that arises or accrues from events that occurred prior to such transfer date.

4.4 Affiliate Transferee . A transfer of the Secured Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the date hereof (the “ Affiliate Transferee ”) will be permitted, provided that Borrower satisfies all of the transfer conditions set forth in this Paragraph 4 to Lender’s satisfaction (including the right of Lender to thoroughly review the organizational documentation of the Affiliate Transferee and its constituent members/partners), except that payment to Lender of an assumption fee shall not be due in connection with such transfer to an Affiliate Transferee. Any such transfer to an Affiliate Transferee shall not constitute Borrower’s one-time right to transfer the Secured Property pursuant to this Paragraph 4 and such one-time right to so transfer the Secured Property to another party shall continue for the benefit of the Affiliate Transferee.

5. Permitted Transfers of Non-Controlling Ownership Interests .

5.1 Permitted Transfers . Notwithstanding the provisions of Section 1.11 of the Mortgage, Lender agrees to allow transfers of direct and indirect non-controlling ownership interests in Borrower, subject to Lender’s prior written consent, which consent shall not be unreasonably withheld, provided that Lender receives at least thirty (30) days prior written notice of the proposed transfer together with all supporting documentation required by Lender, including but not limited to, a chart showing the proposed revised ownership structure of Borrower and copies of the proposed modifications to any of the organizational documents of Borrower, its constituent entities and/or its principals, and provided further that:

 

  (a) at the time of such transfer:

 

  (i) each of the Guarantors reaffirms all of its obligations under the Environmental Indemnity Agreement and under the Guaranty;

 

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  (ii) if requested by Lender, Borrower provides to Lender its representation and warranty, in form and substance satisfactory to Lender, regarding the new ownership structure of Borrower and an opinion of counsel acceptable to Lender from counsel acceptable to Lender, that the ownership structure of Borrower is as has been represented to Lender by Borrower and as to such other matters related to the proposed transfer as Lender may require;

 

  (iii) Borrower re-makes representations and warranties acceptable to Lender and substantially equivalent to those set forth in the Loan Instruments (exclusive of any modifications thereto set forth in side letters, if any, which are “personal” to the original Borrower) relating to compliance with OFAC or other statutes or regulations covered by Section 2.08 of the Mortgage and any similar regulations or statutes and the Employee Retirement Income Security Act of 1974, as same may have been amended;

 

  (iv) neither the proposed transferee, nor any of its constituent entities, nor any person or entity affiliated with either the proposed transferee or any of its constituent entities (A) has held an ownership interest in real property that was collateral for any loan made by Lender and/or any of its affiliates (each a “ NYL Loan ”) that was sold at a foreclosure or similar sale or transferred by deed in lieu thereof or as to which a foreclosure or similar sale proceeding was or is pending, (B) has been in default, beyond the applicable cure period, if any, under a NYL Loan as a result of which the NYL Loan has been accelerated, (C) in connection with a default under a NYL Loan, has entered into a modification, forbearance or similar agreement, (D) is presently or at any time has been, the subject of any bankruptcy, reorganization, insolvency, debtor-creditor or other similar proceeding, or made an assignment for the benefit of creditors in connection with any NYL Loan, and/or (E) is a current or past litigant, opposing Lender, in any lawsuit brought against or by Lender;

 

  (v) neither the proposed transferee, nor any of its parent constituent entities (A) is presently or at any time has been the subject of any bankruptcy, reorganization, insolvency, debtor-creditor or other similar proceeding, or made an assignment for the benefit of creditors or (B) has held an ownership interest in real property that was collateral for any loan that was sold at foreclosure or similar sale or transferred by deed in lieu thereof or as to which a foreclosure or similar sale proceeding was or is pending;

 

  (vi) the Rental Requirement and the Tax Exemption Requirement continue to be satisfied; and

 

  (vii) all actual out-of-pocket costs and expenses incurred by Lender (including reasonable legal fees) in connection with the transaction are paid by Borrower;

 

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  (b) immediately following the contemplated transfer:

 

  (i) TRT retains (a) indirect ownership of no less than 51% of the ownership interests in Borrower and (b) direct ownership of no less than 51% of the ownership interests in (A) TROP or (B) its successor by merger or consolidation, and, by virtue of such ownership interest, controls the management of Borrower and the Secured Property and is required by the Loan Instruments to maintain such ownership interest and management rights, and

 

  (ii) TRT remains widely held and no one person or entity owns, together with their respective affiliates, more than 49% of the shares of TRT (the foregoing clauses (i) and (ii) shall be referred to collectively as the “ TRT Criteria ”).

 

  (c) Borrower pays to Lender a non-refundable processing fee of $10,000.

 

  (d) Upon completion of the transfer, Borrower shall provide to Lender all of the documents associated with the transfer as may be requested by Lender.

5.2 Additional TRT and TROP Transfer Rights . Notwithstanding the provisions of Section 1.11 of the Mortgage, the following transfers shall be permitted, subject to the terms and conditions set forth below:

 

  (a) Transfers of ownership of shares in TRT and of partnership interests in TROP shall be permitted without notice to or the consent of Lender being required or payment of a fee provided that (A) the TRT Criteria are satisfied, (B) any such transfer of ownership does not cause a breach of any covenant, representation or warranty set forth in the Loan Instruments relating to compliance with OFAC or ERISA (as such terms are defined in the Mortgage) (an “ OFAC/ERISA Breach ”) and (C) any such transfer of ownership interests shall not impair Guarantor’s obligations under the Environmental Indemnity Agreement and under the Guaranty and Guarantor shall so acknowledge in the Loan Instruments executed at the closing.

 

  (b)

TRT and TROP may merge or consolidate with another entity, without the consent of Lender being required, provided that: (i) (A) the surviving entity, if not TRT or TROP, is a Qualified Party (as defined below) and in the case of a merger or consolidation of TROP, TRT is Not Impaired by the Merger (as defined below) and the TRT Criteria is satisfied, (B) the surviving entity, if TRT or TROP, is Not Impaired by the Merger and in the case of a merger or consolidation of TROP, TRT is also Not Impaired by the Merger and the TRT Criteria is satisfied and (C) such action does not cause an OFAC/ERISA Breach, (ii) Lender receives at least thirty (30) days prior written notice of the proposed merger or consolidation, describing the merger or consolidation together with all supporting documentation reasonably required by Lender to determine if the

 

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surviving entity is a Qualified Party or Not Impaired by the Merger, as applicable, (iii) any such transfer of ownership interests shall not impair Guarantor’s obligations under the Environmental Indemnity Agreement and under the Guaranty and Guarantor (which shall be the surviving entity after the merger or consolidation) shall so acknowledge to Lender in writing, and (iv) Borrower pays to Lender a non-refundable processing fee of $5,000.

5.3 Definitions . For purposes of this Paragraph 5 , “ Qualified Party ” shall mean an entity which (A) meets the conditions of subparagraph 5.1(a)(iv) and (v) above, (B) has a net worth, including the net worth of its ultimate parent if the entity is a single asset entity, exceeding the lesser of (i) $1,100,000,000, and (ii) the net worth of TRT at the time of the merger or consolidation, as applicable, and (C) is recognized as an “institutional investor”, which, at the time of transfer, owns and/or manages at least 5,000,000 square feet of commercial real estate, including 2,000,000 square feet of office space. For purposes of this Paragraph 5 , “Not Impaired by the Merger” shall mean (i) with respect to TRT, that after any merger or consolidation, that TRT’s net worth is not less than the lesser of (x) $1,100,000,000, or (y) the net worth of TRT at the time of the merger or consolidation, as applicable, or (ii) with respect to TROP, that after any merger or consolidation, that TROP’s net worth is not less than the lesser of (x) $1,100,000,000, or (y) the net worth of TROP at the time of the merger or consolidation, as applicable.

6. Options to Extend Loan Term .

6.1 Extension Right . Lender agrees to allow Borrower two (2) options (each an “ Extension Option ”) to extend the Initial Term for two additional twelve (12) month periods (each an “ Extension Period ”) provided Borrower requests the extension in writing not less than sixty-five (65) days prior to the maturity of the Initial Term or the first Extension Period, as the case may be (the “ Extension Request ”).

6.2 Interest Rate and Related Terms . Within fifteen (15) business days of Lender’s receipt of an Extension Request, Lender shall inform Borrower, in writing, of the extension term interest rate and other Loan terms related to floating rate loans (“ Extension Terms Letter ”). The interest rate for each Extension Period shall be determined by Lender, in Lender’s sole discretion, and shall be equal to Lender’s then current interest rate (i.e. 30-day LIBOR plus Lender’s then current spread) for similar loans with similar maturities secured by comparable properties in the same geographic area, but in no event less than five and one-half percent (5.50%). Within fifteen (15) days after receipt of the Extension Terms Letter, Borrower shall advise Lender, in writing, of its election to accept or reject the terms set forth in the Extension Terms Letter. If Lender’s proposed terms are accepted by Borrower, the closing of the applicable Extension Period shall occur at least thirty (30) days before the maturity of the Initial Term or the first Extension Period, as applicable, but the interest rate adjustment shall be effective as of the commencement of the applicable Extension Period. If Borrower rejects the terms proposed by Lender, the Loan will mature at the end of the Initial Term or first Extension Period, as applicable, and Borrower shall have no further option to extend.

 

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6.3 Extension Conditions . In connection with any Extension Option, the following conditions (the “ Extension Conditions ”) must be satisfied:.

(a) no Event of Default has occurred under any of the Loan Instruments and has continued beyond the applicable cure period, if any, and no event has occurred which, with the giving of notice or lapse of time, or both, would constitute an Event of Default;

(b) execution and recording of an extension and modification agreement acceptable to Lender and any other documents required by Lender to conform the existing Loan Instruments to Lender’s then current forms;

(c) Guarantor reaffirms all of its obligations under the Environmental Indemnity Agreement and under the Guaranty and Borrower enters into an interest rate protection agreement, in form and substance satisfactory to Lender with a strike price and an institution reasonably acceptable to Lender;

(d) to the extent available, an endorsement to Lender’s title insurance policy insuring the validity and priority of the lien of the Mortgage, as modified by such extension and modification agreement, subject to no exceptions and reflecting no subordinate liens or other encumbrances encumbering the Secured Property, except those set forth in Lender’s existing Loan title policy, approved in writing by Lender or expressly permitted by the Loan Instruments without Lender consent;

(e) an update to, or recertification of, the survey of the Secured Property, which shall require evidence that no changes were made to the Secured Property since the closing of the Loan, unless approved by Lender;

(f) at Lender’s option, updating and/or re-delivery of all opinions, documentation and other materials delivered by Borrower in connection with the closing of the Loan; provided however, no additional opinion letters shall be required if the sole modifications of the Loan are the extension of the Maturity Date and adjustment of the interest rate;

(g) concurrently with its exercise of each Extension Option, Borrower pays to Lender an extension fee equal to three eighths of one percent (0.375%) of the outstanding principal balance of the Loan;

(h) all out-of-pocket costs and expenses incurred by Lender (including legal fees) in connection with the Extension Option are paid by Borrower, regardless of whether the transaction closes;

(i) Borrower executes and delivers to Lender an amended promissory note reflecting the applicable LIBOR rate and extended maturity date, which shall provide that during any Extension Period Borrower may prepay the entire outstanding principal balance of the Loan, together with all accrued interest

 

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thereon to the date of such prepayment, and all other outstanding obligations, provided that Borrower gives Lender not less than thirty (30) days prior written notice of its intention to make such prepayment, and provided further that Borrower pays the LIBOR breakage fees, if any;

(j) with respect to the exercise of the first Extension Option only, Borrower shall certify to Lender in writing that Guarantor is in compliance with the financial covenants set forth below (which certification shall include a detailed calculation of Guarantor’s Net Worth, Liquidity and Leverage Ratio, in a form acceptable to Lender and prepared and certified by an officer or other authorized party of Guarantor with such financial documentation as Lender may reasonably require to independently verify such certification), tested as of the fiscal quarter last ending before Borrower sends notice to Lender that it requests to exercise the first Extension Option.

(i) Minimum Net Worth: Guarantor’s Net Worth (as defined in the Guaranty) shall not be less than $750,000,000.

(ii) Minimum Liquidity: Guarantor’s Liquidity (as defined in the Guaranty) shall not be less than $35,000,000.

(iii) Leverage Ratio: Guarantor’s Leverage Ratio (as defined in the Guaranty) shall not be greater than 75%.

In the event Guarantor is in breach of one or more of the foregoing covenants, Borrower or Guarantor shall deposit in cash, on the closing date of the first Extension Period, (i) the amount of $9,320,000 into the Debt Service Escrow Account (as defined in the Cash Management Agreement) or (ii) if the only financial covenant that is breached is the Minimum Liquidity covenant, the amount equal to two (2) times the shortfall in Guarantor’s Liquidity (as defined in the Guaranty) not to exceed $9,320,000, which amount shall be deposited into the Covenant Breach Collateral Account with Lender and held pursuant to the Covenant Breach Cash Collateral/LC Agreement (as defined in the Guaranty). In the event the amount described in clause (ii) is deposited with Lender, such additional collateral shall be held by Lender until such time as Borrower shall have deposited a total of $9,320,000 into the Debt Service Escrow Account.

6.4 First Extension Debt Service Escrow Account .

 

  (a)

In addition to the Extension Conditions set forth in Paragraph 6.3 , should the Secured Property’s projected net operating income during the first Extension Period (excluding the Schwab Lease, but including any direct sub-tenancies whose scheduled lease terms extend beyond the term of Schwab Lease), as determined by Lender in its sole discretion (such determination to be made prior to the first Extension Period), not provide for a 1.00 to 1.00 Debt Coverage Ratio based on a nine percent (9%) loan constant on the outstanding principal balance of the Loan, then Borrower

 

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or Guarantor shall deposit one year of debt service equal to $9,320,000 into the Debt Service Escrow Account in the following manner: on the closing date of the first Extension Option, Borrower or Guarantor shall make an initial deposit of $5,000,000 (“ Initial Deposit ”) into the Debt Service Escrow Account and thereafter beginning on January 10, 2017, shall make monthly deposits in the amount of $480,000 (in addition to the monthly deposit of $170,000 in the TI & LC Account required under the Cash Management Agreement) into the Debt Service Escrow Account on the tenth (10 th ) day of each month for nine (9) months through September 10, 2017, which together with the Initial Deposit shall accrue to $9,320,000 by September 10, 2017. In the event the Schwab Lease is partially terminated or modified prior to the closing date of the first Extension Period, the Initial Deposit shall be recalculated accordingly;

 

  (b) Beginning on October 10, 2017, or as otherwise approved by Lender, funds in the Debt Service Escrow Account may be used to pay any debt service shortfall resulting from the Property’s net operating income being insufficient to cover the actual debt service payment due and payable on the Loan;

 

  (c) The balance of the funds in the Debt Service Escrow Account shall be returned to Borrower if the Loan is paid in full or shall be used to supplement the Additional Collateral Escrow Account (as defined in the Cash Management Agreement) in the event the second Extension Option is exercised;

 

  (d) Notwithstanding the foregoing, in the event the Schwab Lease is terminated or cancelled prior to the closing date of the first Extension Period, Borrower or Guarantor shall make a deposit of $9,320,000 into the Debt Service Escrow Account on the closing date of the first Extension Period which deposit shall be reduced by any deposits made pursuant to subparagraph 6.4(a) or subparagraph 6.3(j) above.

 

  (e) For the avoidance of doubt, in no event shall Borrower be required to deposit more than $9,320,000 into the Debt Service Escrow Account pursuant to subparagraph 6.4(a), 6.4(d) or subparagraph 6.3(j) above;

 

  (f) At the closing of the first Extension Period, Borrower shall pay to Lender a one-time non-refundable fee of $2,000 in connection with the administration of the Debt Service Escrow Account.

6.5 Second Extension Principal Balance Reduction . In the event any of the following conditions are not satisfied, Borrower or Guarantor shall pay down the outstanding principal balance of the Loan by $25,000,000:

 

  (a) on the closing date of the second Extension Option, the Property is at least sixty-five percent (65%) leased to tenants with lease terms acceptable to Lender, in its sole discretion, and

 

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  (b) the Property’s net operating income (excluding the Schwab Lease), as determined by Lender, in its sole discretion, generated from signed tenant leases is not less than the greater of (a) $5,700,000 from 386,120 square feet or (b) the net operating income amount required to provide for a breakeven Debt Coverage Ratio based on the actual interest payments.

6.6 Second Extension Additional Collateral Escrow Account . In the event the Property’s net operating income (excluding the Schwab Lease), as determined by Lender, in its sole discretion, does not provide a 1.30 to 1.00 Debt Coverage Ratio based on a nine percent (9%) constant on the outstanding principal balance of the Loan (or the reduced outstanding principal balance of the Loan, as applicable), then Borrower or Guarantor shall:

 

  (a) transfer any remaining funds, if any, in the Debt Service Escrow Account into the Additional Collateral Escrow Account, and

 

  (b) deposit additional amounts into the Additional Collateral Escrow Account, equal to the difference between (X) the product of (i) the Loan’s outstanding principal balance and (ii) nine percent (9%) constant and (Y) the funds described in clause (a) above.

The Additional Collateral Escrow Account shall not be used to pay debt service. The funds shall remain on deposit until (i) the date on which the outstanding principal balance of the Loan is repaid in full or (ii) at the time Lender determines, in its sole discretion, that the Property’s projected net operating income in each year beginning January 1, 2018 through and including December 31, 2022 supports a 1.30 to 1.00 Debt Coverage Ratio based on a nine percent (9%) loan constant on the outstanding principal balance of the Loan.

7. Deemed Lease Approval . Notwithstanding anything to the contrary contained in Section 1.08 of the Mortgage or Section 8 of the Assignment, for all new leases, renewals, extensions, amendments or modifications that require Lender’s approval, if Lender fails to respond to Borrower’s request for approval within seven (7) Business Days of Lender’s receipt of such request, followed by Lender’s failure to respond within three (3) Business Days of a second request by Borrower, such failure shall be deemed to be Lender’s approval of the document submitted by Borrower for approval. In order to be effective, such approval requests shall contain language in bold, capital letters advising Lender of the time period in which Lender is required to review such request and that Lender’s failure to do so within such time period shall result in a deemed approval.

8. Building Façade Inspection . Borrower agrees to engage a consultant reasonably acceptable to Lender every three (3) years to conduct (and such consultant shall conduct) an inspection of the façade at the Secured Property. Borrower shall deliver to Lender such inspection results promptly after Borrower’s receipt thereof.

9. Biennial Certification . Borrower agrees to deliver to Lender every two (2) years copies of the Biennial Certification submitted to the New Jersey Department of Environmental Protection pursuant to that certain Deed Notice dated June 24, 2003 made by American Financial Exchange L.L.C. and recorded in the Hudson County Register of Deeds on September 2, 2003, in Book 7120, Page 291.

 

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* * * * *

This letter agreement shall continue in effect and constitute a consent and waiver only so long as (a) no Event of Default has occurred under any of the Loan Instruments and no event has occurred which, with the giving of notice or lapse of time, or both, would constitute an Event of Default and (b) the Secured Property (or any portion thereof) has not been conveyed or alienated by Borrower, it being acknowledged that this consent and waiver is “personal” to American Financial Exchange, L.L.C., Plaza X Urban Renewal Associates L.L.C. and Plaza X Leasing Associates L.L.C., and in the case of the consent and waiver granted to TRT and TROP pursuant to Paragraph 3 hereof, personal to TRT and TROP, and shall not apply to any successor or assignee of American Financial Exchange, L.L.C., Plaza X Urban Renewal Associates L.L.C. or Plaza X Leasing Associates L.L.C. in the Secured Property or to any successor or assignee of TRT or TROP. If either of the events described in clauses (a) or (b) have occurred, then, at Lender’s option, this letter agreement shall be null and void.

The waivers and consents hereby granted extend only to the matters set forth herein and under the conditions and limitations stated herein, and such waivers and consents are not intended to affect the rights of Lender to exercise any power or right it may have under the Mortgage or any other Loan Instrument.

All capitalized terms used in this letter and not defined shall have the respective meanings ascribed to them in the Mortgage.

[SIGNATURES ON FOLLOWING PAGE.]

 

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Please acknowledge your receipt and agreement to the foregoing by signing a copy of this agreement in the space provided below and returning the signed copy to Lender.

 

Very truly yours,
NEW YORK LIFE INSURANCE COMPANY
By:      

/s/ LAURA CARDNO

Name:      

Laura Cardno

Title:      

Corporate Vice President

Agreement to the foregoing

is hereby acknowledged as of

the 25 day of June, 2010.

BORROWER:

 

AMERICAN FINANCIAL EXCHANGE, L.L.C.,
a New Jersey limited liability company

 

By:  

/s/ GREG MORAN

Name:   Greg Moran
Title:   Authorized Signatory

 

PLAZA X URBAN RENEWAL ASSOCIATES L.L.C.,

a New Jersey limited liability company

 

By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory

 

PLAZA X LEASING ASSOCIATES L.L.C.,

a New Jersey limited liability company

 

By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory


Agreement to the foregoing

is hereby acknowledged as of

the 25 day of June, 2010.

GUARANTOR:

DIVIDEND CAPITAL TOTAL REALTY TRUST INC.,

a Maryland corporation

 

By:  

/s/ GREG MORAN

Name:  

Greg Moran

Title:   Authorized Signatory

 

DIVIDEND CAPITAL TOTAL REALTY

OPERATING PARTNERSHIP LP,

a Delaware limited partnership

By:  

Dividend Capital Total Realty Trust Inc.,

a Maryland corporation,

its general partner

   
  By:  

/s/ GREG MORAN

  Name:  

Greg Moran

  Title:   Authorized Signatory

Exhibit 10.6

Execution Version

THIS MASTER REPURCHASE AND SECURITIES CONTRACT , dated as of June 25, 2010 (this “ Agreement ”), is made by and between TRT LENDING SUBSIDIARY I, LLC , a Delaware limited liability company (“ Seller ”) and WELLS FARGO BANK, NATIONAL ASSOCIATION , a national banking association (as more specifically defined below, “ Buyer ”). Seller and Buyer (each a “ Party ”) hereby agree as follows:

ARTICLE 1

APPLICABILITY

Section 1.01 Applicability . Subject to the terms and conditions of the Repurchase Documents, from time to time during the Funding Period and at the request of Seller, the Parties may enter into transactions in which Seller agrees to sell, transfer and assign to Buyer certain Assets and all related rights in and interests related to such Assets on a servicing released basis, against the transfer of funds by Buyer representing the Purchase Price for such Assets, with a simultaneous agreement by Buyer to transfer to Seller and Seller to repurchase such Assets in a repurchase transaction on their respective Repurchase Dates and in no event at a date later than the Maturity Date, against the transfer of funds by Seller representing the Repurchase Price for such Assets.

ARTICLE 2

DEFINITIONS AND INTERPRETATION

40 Act ”: The Investment Company Act of 1940, as amended, restated or modified from time to time.

Accelerated Repurchase Date ”: As defined in Section 10.02 .

Account Control Agreement ”: A bank account control agreement in favor of Buyer with respect to any bank account related to a Purchased Asset, substantially in the form attached as Exhibit K hereto.

Actual Knowledge ”: With respect to any Person, the actual knowledge of such Person without further inquiry or investigation; provided, that for the avoidance of doubt, and such actual knowledge shall include the actual knowledge of such Person and each of its Responsible Officers, directors and the managers of Dividend Capital Total Advisors LLC. In addition, when determining Actual Knowledge with respect to information concerning any Purchased Asset, such term shall also include the actual knowledge, without further inquiry or investigation, of all employees of such Person who spent a material amount of time on matters relating to such Purchased Asset.

Affiliate ”: With respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such Person.

Agreement ”: As defined in the preamble.


Alternative Rate ”: A per annum rate based on an index approximating the behavior of LIBOR and at rates substantially similar to the LIBO Rate, as reasonably determined by Buyer.

Anti-Terrorism Laws ”: Any Requirements of Law relating to money laundering or terrorism, including Executive Order 13224 signed into law on September 23, 2001, the regulations promulgated by the Office of Foreign Assets Control of the Treasury Department, and the Patriot Act.

Applicable Percentage ”: For each Purchased Asset as of any date, the lower of (a) the applicable percentage determined by Buyer for such Purchased Asset on the Purchase Date therefor, up to the Maximum Applicable Percentage, and (b) any lower applicable percentage requested by Seller for such Purchased Asset on the Purchase Date therefor as such applicable percentage is increased, with respect to this clause (b), by taking into account any additional amounts of Purchase Price paid by Buyer after the applicable Purchase Date in accordance with this Agreement up to the percentage determined under the preceding clause (a), in each case as set forth on the related Confirmation.

Appraisal ”: A FIRREA compliant appraisal addressed to and reasonably satisfactory to Buyer.

Asset ”: Any Whole Loan or Senior Interest, the Underlying Mortgaged Property for which is included in the categories for Types of Mortgaged Property.

Bankruptcy Code ”: Title 11 of the United States Code.

Blank Assignment Documents ”: As defined in Section 6.02(j) .

Book Value ”: For any Purchased Asset as of any date, an amount, as certified by Seller in the related Transaction Request and Confirmation, equal to the lesser of (a) the outstanding principal amount or par value thereof as of such date, and (b) the price that Seller initially paid or advanced in respect thereof, in either case, minus principal payments received by Seller, and as further reduced by losses realized and writedowns taken by Seller, other than any payments made to Seller in error to the extent refunded by Seller.

Brickman Dulles Creek Loan ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Business Day ”: Any day other than a Saturday or a Sunday (a) on which banks in the States of New York or North Carolina are not authorized or obligated by law or executive order to be closed, or (b) if the term “Business Day” is used in connection with the determination of LIBOR, on which dealings in Dollar deposits are carried on in the London interbank market.

Buyer ”: Wells Fargo Bank, National Association, in its capacity as Buyer under this Agreement and the other Repurchase Documents.

 

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Buyer’s Margin Percentage ”: For any Purchased Asset as of any date, the percentage equivalent of the quotient obtained by dividing (a) one (1) by (b) the Applicable Percentage used to calculate the Purchase Price on the related Purchase Date.

Capital Lease Obligations ”: With respect to any Person, the amount of all obligations of such Person to pay rent or other amounts under a lease of property to the extent and in the amount that such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person pursuant to GAAP.

Capital Stock ”: Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent equity ownership interests in a Person which is not a corporation, including, without limitation, any and all member or other equivalent interests in any limited liability company, and any and all partnership or other equivalent interests in any partnership or limited partnership, and any and all warrants or options to purchase any of the foregoing.

Change of Control ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Class ”: With respect to an Asset, such Asset’s classification as one of the following: Whole Loan or Senior Interest.

Closing Certificate ”: A true and correct certificate substantially in the form attached as Exhibit I , executed by a Responsible Officer of Seller.

Closing Date ”: June 25, 2010.

Code ”: The Internal Revenue Code of 1986, as amended.

Commitment Fee ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Compliance Certificate ”: A true and correct certificate substantially in the form attached as Exhibit J , executed by a Responsible Officer of Parent.

Confirmation ”: A purchase confirmation substantially in the form attached as Exhibit B , duly completed, executed and delivered by Seller and Buyer in accordance with Section 3.01 .

Contingent Liabilities ”: With respect to any Person as of any date, all of the following as of such date: (a) liabilities and obligations (including any Guarantee Obligations) of such Person in respect of “off-balance sheet arrangements” (as defined in the Off-Balance Sheet Rules defined below), (b) obligations, including Guarantee Obligations, whether or not required to be disclosed in the footnotes to such Person’s financial statements, guaranteeing in whole or in part any Non-Recourse Indebtedness, lease, dividend or other obligation, exclusive of (i) contractual indemnities (including any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and (ii) guarantees of non-monetary obligations (other than guarantees of completion, environmental indemnities and guarantees of customary

 

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carve-out matters made in connection with Non-Recourse Indebtedness, such as fraud, misappropriation, bankruptcy and misapplication) that have not yet been called on or quantified, of such Person or any other Person, and (c) forward commitments or obligations to fund or provide proceeds with respect to any loan or other financing that is obligatory and non-discretionary on the part of the lender. The amount of any Contingent Liabilities described in the preceding clause (b) shall be deemed to be (i) with respect to a guarantee of interest or interest and principal, or operating income guarantee, the sum of all payments required to be made thereunder (which, in the case of an operating income guarantee, shall be deemed to be equal to the debt service for the note secured thereby), through (x) in the case of an interest or interest and principal guarantee, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (y) in the case of an operating income guarantee, the date through which such guarantee will remain in effect, and (ii) with respect to all guarantees not covered by the preceding clause (i), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements of such Person. “ Off-Balance Sheet Rules ” means the Disclosure in Management’s Discussion and Analysis About Off-Balance Sheet Arrangements and Aggregate Contractual Obligations, Securities Act Release Nos. 33–8182; 34–47264; FR–67 International Series Release No. 1266 File No. S7–42–02, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR Parts 228, 229 and 249).

Contractual Obligation ”: With respect to any Person, any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, deed to secure debt, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property or assets are bound or are subject.

Control ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Controlled Account Agreement ”: A control agreement with respect to the Waterfall Account and the Servicing Agreement Account, each dated as of the date of this Agreement, among Seller, Buyer and Waterfall Account Bank, substantially in the form attached as Exhibit M or such other form acceptable to Buyer and Seller.

Credit Event ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Current Mark - to - Market Value ”: For any Purchased Asset as of any date, the market value for such Purchased Asset as of such date as determined by Buyer in its discretion.

Custodial Agreement ”: The Custodial Agreement, dated as of the date hereof, among Buyer, Seller and Custodian, substantially in the form attached as Exhibit E .

Custodian ”: Wells Fargo Bank, National Association, or any successor permitted by the Custodial Agreement.

 

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Debt Yield Test ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Default ”: Any event which, with the giving of notice or the lapse of time, or both, would become an Event of Default.

Default Rate ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Defaulted Asset ”: Any Asset or Purchased Asset, as applicable, (a) that is thirty (30) or more days delinquent (or, in the case of payments due at maturity, one (1) Business Day delinquent beyond any applicable grace period) in the payment of principal, interest, fees, distributions or any other amounts payable under the related Whole Loan Documents, (b) for which there is a breach of any of the material representations and warranties set forth in the Repurchase Documents beyond any applicable notice or grace periods, (c) for which there is a material non-monetary default under the related Whole Loan Documents beyond any applicable notice or cure period, (d) as to whose Underlying Obligor an Insolvency Event has occurred, or (e) for which Seller, Servicer or Sub-Servicer has received notice of the foreclosure or proposed foreclosure of any Lien on the related Underlying Mortgaged Property.

Derivatives Contract ”: Any rate swap transaction, basis swap, credit derivative transaction, forward rate transaction, commodity swap, commodity option, forward commodity contract, equity or equity index swap or option, bond or bond price or bond index swap or option or forward bond or forward bond price or forward bond index transaction, interest rate option, forward foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot contract, or any other similar transaction or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, including any obligations or liabilities thereunder.

Derivatives Termination Value ”: With respect to any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in the preceding clause (a), the amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined based on one or more mid-market or other readily available quotations provided by any recognized dealer in such Derivatives Contracts (which may include Buyer).

Dollars ” and “ $ ”: Lawful money of the United States of America.

Early Buyer Demand Repurchase Date ”: As defined in Section 3.05 .

Early Repurchase Date ”: An Early Buyer Demand Repurchase Date or an Early Seller Demand Repurchase Date.

Early Seller Demand Repurchase Date ”: As defined in Section 3.05 .

 

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EBITDA ”: With respect to any Person and for any Test Period, an amount equal to the sum of (a) Net Income (or loss) of such Person (prior to any impact from non-controlling interests and before deduction of any dividends on preferred stock of such Person), plus the following (but only to the extent actually included in determination of such Net Income (or loss)): (i) depreciation and amortization expense, (ii) Interest Expense, (iii) income tax expense, and (iv) extraordinary or non-recurring gains and losses, plus (b) such Person’s proportionate share of EBITDA of the joint venture investments and unconsolidated Affiliates of such Person, in each case with respect to such Test Period.

Eligible Asset ”: An Asset:

(a) that has been approved as a Purchased Asset by Buyer in its discretion;

(b) with respect to which no Representation Breach exists;

(c) that is not a Defaulted Asset;

(d) with respect to which there are no future funding obligations on the part of Seller, Buyer or any other Person unless such future funding obligations are Retained Interests;

(e) that, immediately after giving effect to its purchase by Buyer, does not result in a failure of the Debt Yield Test;

(f) for all Hotel Assets (i) if the hotel is a national flag hotel or other hotel approved by Buyer, to the extent applicable, Buyer has received a copy of the franchise agreement and related documents for operation of the hotel under the national flag, all reports issued by the franchisor and a comfort letter from the franchisor running to the benefit of successors and assigns of the lender, and (ii) the hotel is managed under a management agreement and subordination of management agreement, all of which are acceptable to Buyer in its discretion;

(g) whose Underlying Mortgaged Property is located in the United States, whose Underlying Obligors are domiciled in the United States, and all obligations thereunder and under the underlying Whole Loan Documents are denominated and payable in Dollars;

(h) whose Underlying Obligors are not Sanctioned Entities;

(i) where Seller has a perfected, validly assignable and first-priority security interest on a “stabilized” commercial or multi-family property;

(j) that satisfies the LTV/LTC Test;

(k) that does not involve an Equity Interest by Seller, Guarantor or any Affiliate of Seller or Guarantor in the Underlying Obligor that would result in (i) an actual or potential conflict of interest, (ii) an affiliation with an Underlying Obligor which results or could result in the loss or impairment of any material rights of the holder of the

 

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Asset; provided, Seller shall disclose to Buyer before the Purchase Date each Equity Interest held or to be held by Seller, Guarantor or any Affiliate of Seller or Guarantor with respect to such Asset whether or not it satisfies either of the preceding clauses (i) or (ii); and

(l) except for the Original Purchased Assets, was not acquired, directly or indirectly, from Guarantor or any Relevant Affiliate;

provided , that notwithstanding the failure of an Asset or Purchased Asset to conform to the requirements of this definition, Buyer may, in its discretion and subject to such terms, conditions and requirements and Applicable Percentage adjustments as Buyer may require in its discretion, designate in writing any such non-conforming Asset or Purchased Asset as an Eligible Asset and such Asset or Purchased Asset shall then constitute an Eligible Asset for all other purposes of this Agreement and (subject to such terms, conditions, requirements and adjustments as Buyer may require remaining true and correct), which designation (1) may include a temporary or permanent waiver of one or more Eligible Asset requirements, and (2) shall not be deemed a waiver of the requirement that all other Assets and Purchased Assets must be Eligible Assets (including any Assets that are similar or identical to the Asset or Purchased Asset subject to the waiver).

Environmental Laws ”: Any federal, state, foreign or local statute, law, rule, regulation, ordinance, code, guideline, written policy and rule of common law now or hereafter in effect, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, employee health and safety or hazardous materials, including CERCLA, RCRA, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the Oil Pollution Act of 1990, the Emergency Planning and the Community Right-to-Know Act of 1986, the Hazardous Material Transportation Act, the Occupational Safety and Health Act, and any state and local or foreign counterparts or equivalents.

Equity Interests ”: With respect to any Person, (a) any share, interest, participation and other equivalent (however denominated) of capital stock of (or other ownership, equity or profit interests in) such Person, (b) any warrant, option or other right for the purchase or other acquisition from such Person of any of the foregoing, (c) any security convertible into or exchangeable for any of the foregoing, and (d) any other ownership or profit interest in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date.

ERISA ”: The Employee Retirement Income Security Act of 1974.

Event of Default ”: As defined in Section 10.01 .

Excess Funding Capacity ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Extended Maturity Date ”: The meaning set forth in Section 3.07 .

 

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Extension Fee ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Fee and Pricing Letter ”: The Fee and Pricing Letter, dated as of the date hereof, between Buyer and Seller.

Fixed Charge Coverage Ratio ”: With respect to any Person and for any Test Period, the EBITDA for such Test Period, divided by the Fixed Charges for such Test Period.

Fixed Charges ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Funding Expiration Date ”: The earliest of (a) June 24, 2011, (b) any Accelerated Repurchase Date, and (c) any date on which the Funding Expiration Date shall otherwise occur in accordance with the provisions hereof or Requirements of Law.

Funding Fee ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Funding Period ”: The period from the Closing Date to and including the Funding Expiration Date.

GAAP ”: Generally accepted accounting principles as in effect from time to time in the United States, consistently applied.

Governing Documents ”: With respect to any Person, its articles or certificate of incorporation or formation, by-laws, partnership, limited liability company, operating or trust agreement and/or other organizational, charter or governing documents.

Governmental Authority ”: Any (a) nation or government, (b) state or local or other political subdivision thereof, (c) central bank or similar monetary or regulatory authority, (d) Person, agency, authority, instrumentality, court, regulatory body, central bank or other body or entity exercising executive, legislative, judicial, taxing, quasi-judicial, quasi-legislative, regulatory or administrative functions or powers of or pertaining to government, (e) court or arbitrator having jurisdiction over such Person or its assets or properties, (f) stock exchange on which shares of stock of such Person are listed or admitted for trading, (g) accounting board or authority that is responsible for the establishment or interpretation of national or international accounting principles, and (h) supra-national body such as the European Union or the European Central Bank.

Ground Lease ” A ground lease containing the following terms and conditions: (a) a remaining term (exclusive of any unexercised extension options) of thirty (30) years or more from the Purchase Date of the related Asset, (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor or with such consent given, (c) the obligation of the lessor to give the holder of any mortgage lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so, (d) reasonable transferability of the lessee’s interest

 

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under such lease, including ability to sublease, and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease.

Guarantee Agreement ”: A Guarantee Agreement, substantially in the form attached as Exhibit C , made by Guarantor in favor of Buyer.

Guaranty Amount ”: The meaning set forth in the Guarantee Agreement.

Guarantee Default ”: As defined in Section 8.13 .

Guarantee Obligation ”: With respect to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of the obligations for which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends, Contractual Obligation, Derivatives Contract or other obligations or indebtedness (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation, or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee Obligation (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee Obligation); provided , that in the absence of any such stated amount or stated liability, the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum anticipated liability in respect thereof as reasonably determined by such Person in good faith.

Guarantor ”: Each of, and collectively, Parent and OP, jointly and severally.

Hedge Counterparty ”: Any other counterparty (which may be Buyer or one of its Affiliates) approved by Buyer in its reasonable discretion to any Interest Rate Protection Agreement with Seller, in either case that contains a consent satisfactory to Buyer in its reasonable discretion to the collateral assignment to Buyer of the rights (but none of the obligations) of Seller thereunder.

Hedge Required Asset ”: A Purchased Asset that has a fixed rate of interest or return, or any other Purchased Asset that may be designated as such by Buyer in its reasonable discretion after consultation with Seller.

 

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Hotel Asset ”: Each Purchased Asset that is secured by a Mortgaged Property that is improved in whole or in part by a hotel, motel or similar improvement.

Income ”: With respect to any Purchased Asset, all of the following (in each case with respect to the entire par amount of the Asset represented by such Purchased Asset and not just with respect to the portion of the par amount represented by the Purchase Price advanced against such Asset): (a) all Principal Payments, (b) all Interest Payments, and (c) all other income, distributions, receipts, payments, collections, prepayments, recoveries, proceeds (including insurance and condemnation proceeds) and other payments or amounts of any kind paid, received, collected, recovered or distributed on, in connection with or in respect of such Purchased Asset, including principal payments, interest payments, principal and interest payments, prepayment fees, extension fees, exit fees, defeasance fees, transfer fees, make whole fees, late charges, late fees and all other fees or charges of any kind or nature, premiums, yield maintenance charges, penalties, default interest, dividends, gains, receipts, allocations, rents, interests, profits, payments in kind, returns or repayment of contributions, net sale, foreclosure, liquidation, securitization or other disposition proceeds, insurance payments, settlements and proceeds; provided, that (i) any expenses incurred by or on behalf of Seller and required to be reimbursed (but only to the extent actually reimbursed) by an Underlying Obligor under the applicable Mortgage Documents shall not be included in the term “Income” and (ii) any amounts that under the applicable Whole Loan Documents are required to be deposited into and held in escrow or reserve to be used for a specific purpose, such as taxes and insurance, shall not be included in the term “Income” unless and until (i) an event of default exists under such Whole Loan Documents, (ii) the holder of the related Purchased Asset has exercised or is entitled to exercise rights and remedies with respect to such amounts, (iii) such amounts are no longer required to be held for such purpose under such Whole Loan Documents, or (iv) such amounts may be applied to all or a portion of the outstanding indebtedness under such Whole Loan Documents.

Indebtedness ”: With respect to any Person and any date, all of the following with respect to such Person as of such date: (a) obligations in respect of money borrowed (including principal, interest, assumption fees, prepayment fees, yield maintenance charges, penalties, exit fees, contingent interest and other monetary obligations whether choate or inchoate and whether by loan, the issuance and sale of debt securities or the sale of property or assets to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets, or otherwise), (b) obligations, whether or not for money borrowed (i) represented by notes payable, letters of credit or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered, or (iv) in connection with the issuance of Preferred Equity or trust preferred securities, (c) Capital Lease Obligations, (d) reimbursement obligations under any letters of credit or acceptances (whether or not the same have been presented for payment), (e) Off-Balance Sheet Obligations, (f) obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any mandatory redeemable stock issued by such Person or any other Person (inclusive of forward equity contracts), valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (g) as applicable, all obligations of

 

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such Person (but not the obligation of others) in respect of any keep well arrangements, credit enhancements, contingent or future funding obligations under any Purchased Asset or any obligation senior to any Purchased Asset, unfunded interest reserve amount under any Purchased Asset or any obligation that is senior to any Purchased Asset, purchase obligation, repurchase obligation, sale/buy-back agreement, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other than mandatory redeemable stock)), (h) net obligations under any Derivatives Contract not entered into as a hedge against existing indebtedness, in an amount equal to the Derivatives Termination Value thereof, (i) all Non-Recourse Indebtedness, recourse indebtedness and all indebtedness of other Persons that such Person has guaranteed or is otherwise recourse to such Person, (j) all indebtedness of another Person secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other than certain Permitted Liens) on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligation; provided, that if such Person has not assumed or become liable for the payment of such indebtedness, then for the purposes of this definition the amount of such indebtedness shall not exceed the market value of the property subject to such Lien, (k) all Contingent Liabilities, (l) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person or obligations of such Person to pay the deferred purchase or acquisition price of property or assets, including contracts for the deferred purchase price of property or assets that include the procurement of services, (m) indebtedness of general partnerships of which such Person is liable as a general partner (whether secondarily or contingently liable or otherwise), and (n) obligations to fund capital commitments under any Governing Document, subscription agreement or otherwise.

Indemnified Amount ”: As defined in Section 13.01 .

Indemnified Person ”: As defined in Section 13.01 .

Independent Director ” or “ Independent Manager ”: An individual who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors or Independent Managers, another nationally recognized company reasonably approved by Buyer, in each case that is not an Affiliate of Seller and that provides professional Independent Directors and Independent Managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as a member of the board of directors or board of managers of such corporation or limited liability company and is not, has never been, and will not while serving as Independent Director or Independent Manager be, any of the following:

(a) a member, partner, equityholder, manager, director, officer or employee of Seller, Pledgor or any of their respective equityholders or Affiliates (other than (a) as an Independent Director or Independent Manager of Seller or Pledgor and (b) as an Independent Director or Independent Manager of an Affiliate of Seller or Pledgor or any

 

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of their respective single-purpose entity equityholder that is not in the direct chain of ownership of Seller or Pledgor and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Director or Independent Manager is employed by a company that routinely provides professional Independent Directors or Independent Managers);

(b) a creditor, supplier or service provider (including provider of professional services) to Seller, any single-purpose entity equityholder, or any of their respective equityholders or Affiliates (other than a nationally-recognized company that routinely provides professional Independent Directors or Independent Managers and other corporate services to Seller, any single-purpose entity equityholder, or any of their respective equityholders or Affiliates in the ordinary course of business);

(c) a family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or

(d) a Person that controls (whether directly, indirectly or otherwise) any of the individuals described in the preceding clauses (a), (b) or (c).

An individual who otherwise satisfies the preceding definition other than clause (a) by reason of being the Independent Director or Independent Manager of a “special purpose entity” affiliated with Seller or Pledgor shall not be disqualified from serving as an Independent Director or Independent Manager of Seller or Pledgor if the fees that such individual earns from serving as Independent Directors or Independent Managers of Affiliates of Seller or Pledgor in any given year constitute in the aggregate less than 5% of such individual’s annual income for that year.

Insolvency Action ”: With respect to any Person, the taking by such Person of any action resulting in an Insolvency Event, other than solely under clause (g) of the definition thereof.

Insolvency Event ”: With respect to any Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises with respect to such Person or any substantial part of its assets or property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its assets or property, or ordering the winding-up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of sixty (60) days, (b) the commencement by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect, (c) the consent by such Person to the entry of an order for relief in an involuntary case under any Insolvency Law, (d) the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its assets or property, (e) the making by such Person of any general assignment for the benefit of creditors, (f) the admission in a legal proceeding of the inability of such Person to pay its debts generally as they become due, (g) the failure by such Person generally to pay its debts as they become due, or (h) the taking of action by such Person in furtherance of any of the foregoing.

 

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Insolvency Proceeding ”: Any case, action or proceeding before any court or other Governmental Authority relating to any Insolvency Event.

Insolvency Laws ”: The Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments and similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

Interest Expense ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Interest Payments ”: All payments of interest, income, receipts, dividends, and any other collections and distributions, other than principal, received from time to time in connection with any Purchased Asset.

Interest Rate Protection Agreement ”: With respect to any or all Purchased Assets, any futures contract, options related contract, short sale of United States Treasury securities or any interest rate swap, cap, floor or collar agreement, total return swap or any other similar arrangement providing for protection against fluctuations in interest rates or the exchange of nominal interest obligations, either generally or under specific contingencies and acceptable to Buyer in its reasonable discretion after consultation with Seller. For the avoidance of doubt, any Interest Rate Protection Agreement with respect to a Purchased Asset shall be included in the definitions of “ Purchased Asset ” and “ Repurchase Document .”

Internal Control Event ”: Material weakness in, or fraud that involves management or other employees who have a significant role in, the internal controls of Seller, Guarantor or any Relevant Affiliate, over financial reporting, in each case as described in the Securities Laws.

Investment ”: With respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, whether by means of (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, guaranty or credit enhancement of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person. Any binding commitment or option to make an Investment in any other Person shall constitute an Investment. Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in this Agreement, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

Irrevocable Redirection Notice ”: A notice substantially in the form attached as Exhibit D , sent by Seller or by Servicer or Sub-Servicer on Seller’s behalf directing the remittance of Income with respect to a Purchased Asset to Servicer or the Servicing Agreement Account, as applicable, and executed by (unless agreed to otherwise by Buyer) the applicable Underlying Obligor, Servicer, Sub-Servicer or other Person with respect to such Purchased Asset.

 

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Knowledge ”: With respect to any Person, means collectively (i) the Actual Knowledge of such Person, (ii) notice of any fact, event, condition or circumstance that would cause a reasonably prudent Person to conduct an inquiry that would give such Person Actual Knowledge, whether or not such Person actually undertook such an inquiry, and (iii) all knowledge that is imputed to a Person under any statute, rule, regulation, ordinance, or official decree or order.

LIBOR ”: For any Pricing Period, the rate (expressed as a percentage per annum and rounded upward, if necessary, to the next nearest 1/100 of 1%) for deposits in Dollars, for a one-month period, that appears on Reuters Screen LIBOR01 (or the successor thereto) as the London interbank offered rate for deposits in Dollars as of 11:00 a.m., London time, on the Pricing Rate Reset Date for such Pricing Period. If such rate does not appear on Reuters Screen LIBOR01 as of 11:00 a.m., London time, on such Pricing Rate Reset Date, Buyer shall request the principal London office of any of the Reference Banks in the London interbank market selected by Buyer to provide such banks’ offered quotation (expressed as a percentage per annum) to leading banks in the international Eurocurrency market for deposits in Dollars for a one-month period as of 11:00 a.m., London time, on such Pricing Rate Reset Date for amounts of not less than the aggregate Repurchase Price of all Purchased Assets. If at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, Buyer shall request any three major banks in New York City selected by Buyer to provide such banks’ rate (expressed as a percentage per annum) for loans in Dollars to leading banks in the international Eurocurrency market for a one-month period as of approximately 11:00 a.m., New York City time on the applicable Pricing Rate Reset Date for amounts of not less than the aggregate Repurchase Price of all Purchased Assets. If at least two such rates are so provided, LIBOR shall be the arithmetic mean of such rates.

LIBO Rate ”: For any Pricing Period, the rate (expressed as a percentage per annum and rounded upward, if necessary, to the next nearest 1/100 of 1%) determined for such Pricing Period in accordance with the following formula:

 

  LIBOR for such Pricing  
  Period  
  1 – Reserve Requirement  

Lien ”: Any mortgage, statutory or other lien, pledge, charge, right, claim, adverse claim, attachment, levy, hypothecation, assignment, deposit arrangement, security interest, UCC financing statement or encumbrance of any kind on or otherwise relating to any Person’s assets or properties in favor of any other Person or any preference, priority or other security agreement or preferential arrangement of any kind.

Liquidity ”: With respect to Guarantor and on any relevant date, the amount of cash and cash equivalents held by Guarantor.

 

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LTV/LTC Test ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Margin Call ”: As defined in Section 4.01 .

Margin Deficit ”: As defined in Section 4.01 .

Margin Excess ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Margin Excess Requirements ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Market Disruption Event ”: Any event or events that, in the good faith determination of Buyer, results in (a) the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, (b) Buyer’s not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events or (c) the effective absence of a “securities market” for securities backed by Purchased Assets or assets similar to Purchased Assets.

Market Value ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Material Adverse Effect ”: A material adverse effect on or material adverse change in or to (a) the property, assets, business, operations, financial condition or credit quality of either (I) Seller, individually, or (II) Seller, each Relevant Affiliate and Guarantor, in the aggregate (b) the ability of Seller to pay and perform the Repurchase Obligations, (c) the validity, legality, binding effect or enforceability of any Repurchase Document, Whole Loan Document, Senior Interest Document, Purchased Asset or security interest granted hereunder or thereunder, (d) the rights and remedies of Buyer or any Indemnified Person under any Repurchase Document, Whole Loan Document, Senior Interest Document or Purchased Asset, (e) the rating (if applicable), liquidity or other aspect of a material portion of the Purchased Assets, as determined by Buyer in its discretion, or (f) the perfection or priority of any Lien granted under any Repurchase Document, Whole Loan Document or Senior Interest Document.

Material Modification ”: Any material extension, amendment, waiver, termination, rescission, cancellation, release or other modification to the terms of, or any collateral, guaranty or indemnity for, or the exercise of any material right or remedy of a holder (including all lending, corporate rights, remedies, consents, approvals and waivers) of, any Purchased Asset or Whole Loan Document.

Materials of Environmental Concern ”: Any hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as such in or regulated under any Environmental Law.

 

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Maturity Date ”: The earliest of (a) June 24, 2013, as such date may be extended to an Extended Maturity Date pursuant to Section 3.07(a) , (b) any Accelerated Repurchase Date, and (c) any date on which the Maturity Date shall otherwise occur in accordance with the Repurchase Documents or Requirements of Law.

Maximum Amount ”: $100,000,000, which shall not be reduced upon the repurchase of any Purchased Assets; provided , that on and after the Funding Expiration Date, the Maximum Amount on any date shall automatically be reduced on a dollar for dollar basis with each reduction in the Repurchase Price of each Purchased Asset which occurs as a result of an application of amounts to reduce the Purchase Price of the related Purchased Asset.

Maximum Applicable Percentage ”: For each Purchased Asset as of any date, the maximum applicable percentage determined by Buyer for such Purchased Asset on the Purchase Date and set forth in the Confirmation for such Purchased Asset, and which in no event shall exceed seventy-five percent (75%).

Moody’s ”: Moody’s Investors Service, Inc. or, if Moody’s Investors Service, Inc. is no longer issuing ratings, another nationally recognized rating agency reasonably acceptable to Buyer.

Mortgage ”: Any mortgage, deed of trust, assignment of rents, security agreement and fixture filing, or other instruments creating and evidencing a lien on real property and other property and rights incidental thereto.

Mortgage Note ”: The original executed promissory note or other evidence of the indebtedness of a Mortgagor with respect to a commercial mortgage loan.

Mortgaged Property ”: The real property (including all improvements, buildings, fixtures, building equipment and personal property thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral securing repayment of the debt evidenced by a Senior Interest Note or a Mortgage Note.

Mortgagor ”: The obligor on a Mortgage Note, including any Person who has assumed or guaranteed the obligations of the obligor thereunder.

Multiemployer Plan ”: A Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Cash Flow ”: With respect to any Purchased Asset and for any period, the net cash flow of such Purchased Asset for such period as underwritten by Buyer in its discretion.

Net Income ”: With respect to any Person for any period, the net income of such Person for such period as determined in accordance with GAAP.

Non-Hotel Asset ”: Each Purchased Asset other than a Hotel Asset.

Non-Recourse Indebtedness ”: With respect to any Person and any date, indebtedness of such Person as of such date for borrowed money in respect of which recourse for

 

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payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, Insolvency Events, non-approved transfers or other events) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.

Non-Utilization Fee ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Off-Balance Sheet Obligations ”: With respect to any Person and any date, to the extent not included as a liability on the balance sheet of such Person, all of the following with respect to such Person as of such date: (a) monetary obligations under any financing lease or so–called “synthetic,” tax retention or off-balance sheet lease transaction that, upon the application of any Insolvency Laws, would be characterized as indebtedness, (b) monetary obligations under any sale and leaseback transaction that does not create a liability on the balance sheet of such Person, or (c) any other monetary obligation arising with respect to any other transaction that (i) is characterized as indebtedness for tax purposes but not for accounting purposes, or (ii) is the functional equivalent of or takes the place of borrowing but that does not constitute a liability on the balance sheet of such Person (for purposes of this clause (c), any transaction structured to provide tax deductibility as interest expense of any dividend, coupon or other periodic payment will be deemed to be the functional equivalent of a borrowing).

Omnibus Assignment ”: An omnibus assignment substantially in the form attached as Exhibit N , executed by Seller.

OP ”: Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership.

Original Purchased Assets ”: Collectively, the Willens Loan, the Brickman Dulles Creek Loan and the Walton Houston Galleria Loan.

Parent ”: Dividend Capital Total Realty Trust Inc., a Maryland corporation.

Participant ”: As defined in Section 18.08(b) .

Patriot Act ”: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

Permitted Liens ”: Any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding has been commenced: (a) Liens for state, municipal, local or other local taxes not yet due and payable, (b) Liens imposed by Requirements of Law, such as materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s and similar Liens, arising in the ordinary course of business securing obligations that are not overdue for more than thirty (30) days, (c) Liens granted pursuant to or by the Repurchase Documents, (d) Liens of a collection bank on items in the course of collection arising under Section 4-208 of the UCC as in effect in the State of New York or any other applicable jurisdiction, provided that such Liens are fully discharged within five (5) Business Days from the date any such Lien first arises and (e) solely with respect to Guarantor, judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings and pledges or cash deposits made in lieu of, or to secure the performance of, judgment or appeal

 

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bonds in respect of such judgments and proceedings, provided that no such Lien shall constitute a Permitted Lien if (x) the existence of any such Lien results, whether directly or indirectly in a Default or Event of Default or (y) so long as the Guaranty Amount is greater than zero, the existence of any such Lien results, whether directly or indirectly in Guarantor failing to satisfy any of its financial covenants as set forth in the Guarantee Agreement.

Person ”: An individual, corporation, limited liability company, business trust, partnership, trust, unincorporated organization, joint stock company, sole proprietorship, joint venture, Governmental Authority or any other form of entity.

Plan ”: An employee benefit plan as defined in Section 3(3) of ERISA, subject to Title I of ERISA in respect of which Seller, Guarantor or any Relevant Affiliate, or any Affiliate of any of the foregoing is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Pledge Agreement ”: A Pledge Agreement from Pledgor in favor of Buyer, granting a security interest to Buyer in one-hundred percent (100%) of the equity ownership interest in Seller.

Pledgor ”: TRT Lending Subsidiary I Holdco LLC, a Delaware limited liability company.

Preferred Equity ”: A performing current pay preferred equity position (with a put or synthetic maturity date structure replicating a debt instrument) evidenced by a stock share certificate or other similar ownership certificate representing the entire equity ownership interest in entities that own income producing commercial real estate.

Price Differential ”: (a) For any Pricing Period or portion thereof and any Transaction outstanding, the sum of the products, for each day during such Pricing Period or portion thereof, of (i) 1/360th of the Pricing Rate in effect for such Pricing Period during which such day occurs, times (ii) the Purchase Price for such Purchased Asset as of such day, and (b) for any Pricing Period or portion thereof and all Transactions outstanding, the sum of the amounts calculated in accordance with the preceding clause (a) for all Transactions.

Pricing Margin ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Pricing Period ”: For any Purchased Asset, (a) in the case of the first Remittance Date, the period from the Purchase Date for such Purchased Asset to but excluding such Remittance Date, and (b) in the case of any subsequent Remittance Date, the one-month period commencing on and including the prior Remittance Date and ending on but excluding such Remittance Date; provided , that no Pricing Period for a Purchased Asset shall end after the Repurchase Date for such Purchased Asset.

Pricing Rate ”: For any Pricing Period, the LIBO Rate for such Pricing Period plus the Pricing Margin, which shall be subject to adjustment and/or conversion as provided in Sections 12.01 and 12.02 ; provided, that while an Event of Default exists, the Pricing Rate shall be the Default Rate.

 

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Pricing Rate Reset Date ”: (a) In the case of the first Pricing Period for any Purchased Asset, the Purchase Date for such Purchased Asset, and (b) in the case of any subsequent Pricing Period, two (2) Business Days prior to the Remittance Date on which such Pricing Period begins.

Principal Payments ”: For any Purchased Asset, all payments and prepayments of principal received and applied as principal toward the Purchase Price for such Purchased Asset, including insurance and condemnation proceeds and recoveries from liquidation or foreclosure.

Prohibited Entity ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Purchase Date ”: For any Purchased Asset, the date on which (i) such Purchased Asset is transferred by Seller to Buyer and (ii) Buyer remits the related Purchase Price to Seller.

Purchase Option ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Purchase Price ”: For any Purchased Asset, (a) as of the Purchase Date for such Purchased Asset, an amount equal to the product of the Market Value of such Purchased Asset, times the Applicable Percentage for such Purchased Asset, and (b) as of any other date, the amount described in the preceding clause (a), (i) reduced by any amount of Margin Deficit transferred by Seller to Buyer pursuant to Section 4.01 and applied to the Purchase Price of such Purchased Asset, (ii) reduced by any Principal Payments remitted to the Waterfall Account and which were applied to the Purchase Price of such Purchased Asset by Buyer pursuant to Section 5.02 or Section 5.03 , (iii) reduced by any payments made by Seller in reduction of the outstanding Purchase Price, and (iv) increased by any amount of Margin Excess or Excess Funding Capacity transferred to Seller by Buyer pursuant to Section 3.03 or Section 4.02 , as applicable, in each case before or as of such determination date with respect to such Purchased Asset.

Purchased Assets ”: (a) For any Transaction, each Asset sold by Seller to Buyer in such Transaction, and (b) for the Transactions in general, all Assets sold by Seller to Buyer, in each case including, to the extent relating to such Asset or Assets, all of Seller’s right, title and interest in and to (i) all Whole Loan Documents and Senior Interest Documents, (ii) Servicing Rights, (iii) Servicing Files, (iv) mortgage guaranties and insurance (issued by Governmental Authorities or otherwise) and claims, payments and proceeds thereunder, (v) insurance policies, certificates of insurance and claims, payments and proceeds thereunder, (vi) the principal balance of such Assets, not just the amount advanced, (vii) amounts and property from time to time on deposit in the Waterfall Account and the Waterfall Account itself, (viii) collection, escrow, reserve, collateral or lock–box accounts and all amounts and property from time to time on deposit therein, to the extent of Seller’s or the holder’s interest therein, (ix) Income, (x) amounts and property from time to time on deposit in the Servicer Accounts, together with the Servicer Accounts themselves, (xi) security interests of Seller in Derivatives Contracts entered into by Underlying Obligors, (xii) rights of Seller under any letter of credit, guarantee, warranty, indemnity or other credit support or enhancement, (xiii) Interest Rate Protection Agreements

 

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relating to such Assets, (xiv) all of the “ Pledged Collateral ”, as such term is defined in the Pledge Agreement, and (xv) all supporting obligations of any kind; provided, that (A) Purchased Assets shall not include any obligations of Seller or any Retained Interests, and (B) for purposes of the grant of security interest by Seller to Buyer and the other provisions of Article 11 , Purchased Assets shall include all of the following: general intangibles, accounts, chattel paper, deposit accounts, securities accounts, instruments, securities, financial assets, uncertificated securities, security entitlements and investment property (as such terms are defined in the UCC) and replacements, substitutions, conversions, distributions or proceeds relating to or constituting any of the items described in the preceding clauses (i) through (xv).

Rating Agencies ”: Each of Fitch, Inc., Moody’s and S&P.

Reference Banks ”: Banks each of which shall (a) be a leading bank in the international Eurocurrency market, and (b) have an established place of business in London. Initially, the Reference Banks shall be JPMorgan Chase Bank, Barclays Bank, PLC and Deutsche Bank AG. If any such Reference Bank should be unwilling or unable to act as such or if Buyer shall terminate the appointment of any such Reference Bank or if any of the Reference Banks should be removed from the Reuters Monitor Money Rates Service or in any other way fail to meet the qualifications of a Reference Bank, Buyer may designate alternative banks meeting the criteria specified in the preceding clauses (a) and (b).

REIT ”: A Person satisfying the conditions and limitations set forth in Section 856(b) and 856(c) of the Code which are necessary to qualify such Person as a “real estate investment trust,” as defined in Section 856(a) of the Code.

Release ”: Any generation, treatment, use, storage, transportation, manufacture, refinement, handling, production, removal, remediation, disposal, presence or migration of Materials of Environmental Concern in violation of Environmental Laws on, about, under or within all or any portion of any property or Mortgaged Property.

Relevant Affiliates ” shall mean Pledgor, DCTRT Securities Holdco LLC and TRT Lending.

Remedial Work ”: Any investigation, inspection, site monitoring, containment, clean-up, removal, response, corrective action, mitigation, restoration or other remedial work of any kind or nature because of, or in connection with, the current or future presence, suspected presence, Release or threatened Release in or about the air, soil, ground water, surface water or soil vapor at, on, about, under or within all or any portion of any property or Mortgaged Property of any Materials of Environmental Concern, including any action to comply with any applicable Environmental Laws or directives of any Governmental Authority with regard to any Environmental Laws.

Remittance Date ”: The 14th day of each month (or if such day is not a Business Day, the next following Business Day, or if such following Business Day would fall in the following month, the next preceding Business Day), or such other day as is mutually agreed to by Seller and Buyer.

 

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Reportable Event ”: Any event set forth in Section 4043(c) of ERISA, other than an event as to which the notice period is waived under Pension Benefit Guaranty Commission Reg. §4043.

Representation Breach ”: Any representation, warranty, certification, statement or affirmation made or deemed made by Seller or Guarantor in any Repurchase Document (including in Schedule 1(a) and (b)  hereto) or in any certificate, notice, report or other document delivered pursuant to any Repurchase Document proves to be incorrect, false or misleading in any material respect when made or deemed made.

Repurchase Date ”: For any Purchased Asset, the earliest of (a) three-hundred and sixty-four (364) calendar days from the related Purchase Date, (b) the Maturity Date, (c) any Early Repurchase Date therefor, and (d) the Business Day on which Seller is to repurchase such Purchased Asset as specified by Seller and agreed to by Buyer in the related Confirmation.

Repurchase Documents ”: Collectively, this Agreement, the Custodial Agreement, the Fee and Pricing Letter, the Controlled Account Agreements, all other Account Control Agreements, all Interest Rate Protection Agreements, the Guarantee Agreement, the Pledge Agreement, all Confirmations, all UCC financing statements, amendments and continuation statements filed pursuant to any other Repurchase Document, and all additional documents, certificates, agreements or instruments, the execution of which is required, necessary or incidental to or desirable for performing or carrying out any other Repurchase Document.

Repurchase Obligations ”: All obligations of Seller to pay the Repurchase Price on the Repurchase Date and all other obligations and liabilities of Seller to Buyer arising under or in connection with the Repurchase Documents (including all Interest Rate Protection Agreements), whether now existing or hereafter arising, and all interest and fees that accrue after the commencement by or against Seller, Guarantor or any Relevant Affiliate of any Insolvency Proceeding naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding (in each case, whether due or accrued).

Repurchase Price ”: For any Purchased Asset as of any date, an amount equal to the sum of (a) the outstanding portion of the Purchase Price as of such date, (b) the accrued and unpaid Price Differential for such Purchased Asset as of such date, (c) all amounts that would be payable by Seller to Buyer in connection with the termination of any Interest Rate Protection Agreement with Buyer relating to such Purchased Asset if such Interest Rate Protection Agreement were terminated as of such date and (d) any accrued and unpaid fees and expenses and indemnity amounts and any other amounts owed by Seller or Guarantor to Buyer or any of its Affiliates under any Repurchase Document.

Requirements of Law ”: With respect to any Person or property or assets of such Person and as of any date, all of the following applicable thereto as of such date: all Governing Documents and existing and future laws, statutes, rules, regulations, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority (including Environmental Laws, ERISA, regulations of the Board of Governors of the Federal Reserve System, and laws, rules and regulations relating to usury, licensing, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy), judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other Governmental Authority.

 

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Reserve Requirement ”: For any Pricing Period, the aggregate of the rates (expressed as a decimal fraction) of reserve requirements (if any) arising from any Requirement of Law in effect during such Pricing Period (including basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of such Board of Governors) maintained by Buyer.

Responsible Officer ”: With respect to any Person, the chief executive officer, the chief financial officer, the chief accounting officer, the treasurer or the chief operating officer of such Person.

Retained Interest ”: (a) With respect to any Purchased Asset, (i) all duties, obligations and liabilities of Seller thereunder, including payment and indemnity obligations, (ii) all obligations of agents, trustees, servicers, administrators or other Persons under the documentation evidencing such Purchased Asset, and (iii) if any portion of the Indebtedness related to such Purchased Asset is owned by another lender or is being retained by Seller, the interests, rights and obligations under such documentation to the extent they relate to such portion, and (b) with respect to any Purchased Asset with an unfunded commitment on the part of Seller, all obligations to provide additional funding, contributions, payments or credits.

S&P ”: Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or, if Standard & Poor’s Ratings Services is no longer issuing ratings, another nationally recognized rating agency reasonably acceptable to Buyer.

Sanctioned Entity ”: (a) A country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) a Person resident in or determined to be resident in a country, that in each case is subject to a country sanctions program administered and enforced by the Office of Foreign Assets Control, or (e) a Person named on the list of Specially Designated Nationals maintained by the Office of Foreign Assets Control.

Securities Laws ”: The Securities Act of 1933, the 40 Act, the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002 and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the Securities and Exchange Commission or the Public Company Accounting Oversight Board.

Seller ”: The Seller named in the preamble of this Agreement.

Senior Interest ”: (a) A senior or pari passu participation interest in a performing commercial real estate loan, or (b) an “A-note” in an “A/B structure” in a performing commercial real estate loan.

 

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Senior Interest Documents ”: For any Senior Interest, the Senior Interest Note together with any co-lender agreements, participation agreements and/or other intercreditor agreements or other documents governing or otherwise relating to such Senior Interest.

Senior Interest Note ”: The original executed promissory note, participation or other certificate or other tangible evidence of a Senior Interest.

Servicer ”: Wells Fargo Bank, National Association, as Servicer of all of the Purchased Assets.

Servicing Agreement ”: An agreement entered into by Seller in connection with the servicing of any Purchased Asset.

Servicing Agreement Account ”: The “Servicing Account” under the Servicing and Sub-Servicing Agreement, which shall be an interest bearing demand deposit account established at the Waterfall Account Bank, in the name of Seller, pledged to Buyer and subject to a Controlled Account Agreement.

Servicer Account ”: Any account established by Servicer in connection with the servicing of any Asset or Purchased Asset including, without limitation, the Servicing Agreement Account.

Servicing and Sub-Servicing Agreement ”: The Servicing and Sub-Servicing Agreement between and among Buyer, Seller, Servicer and Sub-Servicer, substantially in the form attached as Exhibit L hereto.

Servicing File ”: With respect to any Purchased Asset, the file retained and maintained by Seller, Servicer and/or Sub-Servicer including the originals or copies of all Whole Loan Documents, Senior Interest Documents and other documents and agreements relating to such Purchased Asset, including to the extent applicable all servicing agreements, files, documents, records, data bases, computer tapes, insurance policies and certificates, Appraisals, other closing documentation, payment history and other records relating to or evidencing the servicing of such Purchased Asset, which file shall be held by Seller, Servicer and/or Sub-Servicer for and on behalf of Buyer.

Servicing Rights ”: All right, title and interest of Seller, Guarantor or any Affiliate of Seller or Guarantor in and to any and all of the following: (a) rights to service and collect the Purchased Assets after the date such Purchased Assets were purchased by Buyer, (b) amounts received by Seller or any other Person for servicing the Purchased Assets during the time each such Purchased Asset is owned by Buyer, (c) late fees, penalties or similar payments with respect to the Purchased Assets that accrued after the date such Purchased Assets were purchased by Buyer, (d) agreements and documents creating or evidencing any such rights to service, documents, files and records relating to the servicing of the Purchased Assets, and rights of Seller or any other Person thereunder, (e) escrow, reserve and similar amounts with respect to the Purchased Assets, (f) rights to appoint, designate and retain any other servicers, sub-servicers, special servicers, agents, custodians, trustees and liquidators with respect to the Purchased Assets, and (g) accounts and other rights to payment related to the Purchased Assets.

 

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Single Employer Plan ”: Any Plan that is not a Multiemployer Plan.

Solvent ”: With respect to any Person at any time, having a state of affairs such that all of the following conditions are met at such time: (a) the fair value of the assets and property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 91(32) of the Bankruptcy Code, (b) the present fair salable value of the assets and property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets and property would constitute unreasonably small capital.

Special Purpose Entity ”: A corporation, limited partnership or limited liability company that, since the date of its formation (unless otherwise indicated in this Agreement) and at all times on and after the date hereof, has complied with and shall at all times comply with the provisions of Article 9.

Sub-Servicer ”: As defined in Section 5(b) of the Fee and Pricing Letter.

Subsidiary ”: With respect to any Person, any corporation, partnership, limited liability company or other entity (heretofore, now or hereafter established) of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are with those of such Person pursuant to GAAP.

Tangible Net Worth ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Term Sheet ”: The letter and/or summary of terms and conditions dated May 28, 2010 between Buyer, Seller and Guarantor.

Test Period ”: The time period from the first day of each calendar quarter, through and including the last day of such calendar quarter.

Total Assets ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Total Indebtedness ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

 

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Transaction ”: With respect to any Asset, the sale and transfer of such Asset from Seller to Buyer pursuant to the Repurchase Documents.

Transaction Request ”: A transaction request substantially in the form attached as Exhibit A , duly completed and executed by Seller and delivered to Buyer in accordance with Section 3.01(a) .

Type ”: With respect to a Mortgaged Property, such Mortgaged Property’s classification as one of the following: multifamily, retail, office, industrial, hospitality, student housing, medical office product or self-storage, or any other property type as approved by Buyer in its sole discretion.

UCC ”: The Uniform Commercial Code as in effect in the State of New York; provided , that, if, by reason of Requirements of Law, the perfection or priority of the security interest in any Purchased Asset is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, UCC shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority.

Underlying Mortgaged Property ”: In the case of any:

(a) Whole Loan, the Mortgaged Property securing such Whole Loan; or

(b) Senior Interest, the Mortgaged Property securing such Senior Interest (if the Senior Interest is of the type described in clause (a) of the definition thereof), or the Mortgaged Property securing the Whole Loan in which such Senior Interest represents a senior participation (if the Senior Interest is of the type described in clause (b) of the definition thereof).

Underlying Obligor ”: Individually and collectively, as the context may require, the Mortgagor and other obligor or obligors under an Asset, including (i) any Person that has not signed the related Mortgage Note but owns an interest in the related Underlying Mortgaged Property, which interest has been encumbered to secure such Asset, and (ii) any other Person who has assumed or guaranteed the obligations of such Mortgagor under the Whole Loan Documents or Senior Interest Documents relating to an Asset.

Underwriting Package ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Usage Amount ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Walton Houston Galleria Loan .”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Waterfall Account ”: A non-interest-bearing demand deposit account established at Waterfall Account Bank, in the name of Seller, pledged to Buyer and subject to a Controlled Account Agreement.

 

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Waterfall Account Bank ”: Wells Fargo Bank, National Association, or any other bank approved by Buyer in its discretion.

Whole Loan ”: A performing first priority commercial real estate whole loan for which the Underlying Mortgaged Property has fully stabilized, as determined by Buyer in its discretion.

Whole Loan Documents ”: With respect to any Purchased Asset, those documents executed in connection with, evidencing or governing such Purchased Asset and the related Underlying Mortgaged Property and any other related documents required to be delivered to Custodian under the Custodial Agreement.

Willens Loan ”: The meaning set forth in the Fee and Pricing Letter, which definition is incorporated by reference herein.

Yield ”: As of the end of each Test Period, the percentage equivalent of the quotient obtained by dividing (i) the underwritten Net Cash Flow from the Mortgaged Properties securing the related Purchased Assets in the aggregate for such Test Period by (ii) the Repurchase Price of such Purchased Assets in the aggregate for such Test Period, plus all amounts outstanding in respect of all related senior or pari passu indebtedness in the aggregate at the end of such Test Period, whether secured or unsecured, in each case, as determined in Buyer’s discretion.

Section 2.01 Rules of Interpretation . Headings are for convenience only and do not affect interpretation. The following rules of this Section 2.01 apply unless the context requires otherwise. The singular includes the plural and conversely. A gender includes all genders. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to an Article, Section, Subsection, Paragraph, Subparagraph, Clause, Annex, Schedule, Appendix, Attachment, Rider or Exhibit is, unless otherwise specified, a reference to an Article, Section, Subsection, Paragraph, Subparagraph or Clause of, or Annex, Schedule, Appendix, Attachment, Rider or Exhibit to, this Agreement, all of which are hereby incorporated herein by this reference and made a part hereof. A reference to a party to this Agreement or another agreement or document includes the party’s permitted successors, substitutes or assigns. A reference to an agreement or document is to the agreement or document as amended, modified, novated, supplemented or replaced, except to the extent prohibited by any Repurchase Document. A reference to legislation or to a provision of legislation includes a modification, codification, replacement, amendment or re-enactment of it, a legislative provision substituted for it and a rule, regulation or statutory instrument issued under it. A reference to writing includes a facsimile or electronic transmission and any means of reproducing words in a tangible and permanently visible form. A reference to conduct includes an omission, statement or undertaking, whether or not in writing. A Default or an Event of Default exists until it has been cured or waived in writing by Buyer. The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context clearly requires or the language provides otherwise. The word “including” is not limiting and means “including without limitation.” The word “any” is not limiting and means “any and all” unless the context clearly requires or the language provides otherwise. In the computation of periods of time from a specified date to a later specified date,

 

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the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.” The words “will” and “shall” have the same meaning and effect. A reference to day or days without further qualification means calendar days. A reference to any time means New York time. This Agreement may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their respective terms. Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed in accordance with GAAP, and all accounting determinations, financial computations and financial statements required hereunder shall be made in accordance with GAAP, without duplication of amounts, and on a consolidated basis with all Subsidiaries. All terms used in Articles 8 and 9 of the UCC, and used but not specifically defined herein, are used herein as defined in such Articles 8 and 9. A reference to “fiscal year” and “fiscal quarter” means such fiscal periods of Seller. A reference to an agreement includes a security interest, guarantee, agreement or legally enforceable arrangement whether or not in writing. A reference to a document includes an agreement (as so defined) in writing or a certificate, notice, instrument or document, or any information recorded in computer disk form. Whenever Seller is required to provide any document to Buyer under the Repurchase Documents, the relevant document shall be provided in writing or printed form unless Buyer requests otherwise. At the request of Buyer, the document shall be provided in computer disk form or both printed and computer disk form. The Repurchase Documents are the result of negotiations between the Parties, have been reviewed by counsel to Buyer and counsel to Seller, and are the product of both Parties. No rule of construction shall apply to disadvantage one Party on the ground that such Party proposed or was involved in the preparation of any particular provision of the Repurchase Documents or the Repurchase Documents themselves. Except where otherwise expressly stated, Buyer may give or withhold, or give conditionally, approvals and consents, and may form opinions and make determinations, in its sole and absolute discretion. Reference in any Repurchase Document to Buyer’s discretion shall mean, unless otherwise expressly stated herein or therein, Buyer’s sole and absolute discretion, and the exercise of such discretion shall be final and conclusive. In addition, whenever Buyer has a decision or right of determination, opinion or request, exercises any right given to it to agree, disagree, accept, consent, grant waivers, take action or no action or to approve or disapprove, or any arrangement or term is to be satisfactory or acceptable to or approved by (or any similar language or terms) Buyer, the decision of Buyer with respect thereto shall be in the sole and absolute discretion of Buyer, and such decision shall be final and conclusive. Any requirement of good faith, discretion or judgment by Buyer shall not be construed to require Buyer to request or await receipt of information or documentation not immediately available from or with respect to Seller or the Purchased Assets.

ARTICLE 3

THE TRANSACTIONS

Section 3.01 Procedures .

(a) From time to time during the Funding Period, but not more frequently than twice per calendar week, with not less than three (3) Business Days prior written notice to Buyer,

 

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Seller may request Buyer to enter into a proposed Transaction by sending Buyer a Transaction Request (i) describing the Transaction and each proposed Asset and any related Underlying Mortgaged Property and other security therefor in reasonable detail, (ii) transmitting such information and materials in Seller’s possession that would be included in an Underwriting Package for each proposed Asset, and (iii) specifying which (if any) of the representations and warranties of Seller set forth in this Agreement (including in Schedule 1 applicable to the Class of such Asset) Seller will be unable to make with respect to such Asset. Seller shall promptly following delivery of such Transaction Request deliver to Buyer any supplemental materials requested at any time by Buyer in its discretion that are either in the possession of Seller or reasonably obtainable by Seller. Buyer shall give Seller notice of the date when Buyer has received sufficient information contained in an Underwriting Package and supplemental materials that will enable Buyer to make a preliminary non-binding indication of whether or not it is willing to purchase any or all of the Assets (the “ Transaction Request Notice Date ”). Buyer shall conduct such review of the materials it has received that would comprise the Underwriting Package and each such Asset as Buyer determines appropriate in its discretion. Notwithstanding the foregoing, Seller shall be permitted, at any time, to deliver to Buyer any information or other related documents or materials with respect to a prospective Purchased Asset. Within five (5) Business Days following the receipt thereof by Buyer, Buyer shall provide Seller with a preliminary, non-binding determination as to whether or not Buyer believes, based solely on the information provided to it by Seller, that such prospective Purchased Asset could qualify as a Purchased Asset upon the satisfaction by Seller of all of the applicable terms and conditions set forth in this Agreement, including the provision of a complete Underwriting Package as required above in this Subsection 3.01(a) .

(b) Buyer shall endeavor to communicate to Seller a preliminary non-binding determination of whether or not it is willing to purchase any or all of such Assets, and if so, on what terms and conditions, within five (5) Business Days after a Transaction Request Notice Date, and if its preliminary determination is favorable, by what date Buyer expects to communicate to Seller a final non-binding indication of its determination which shall not be later than twenty (20) Business Days after receipt of a completed Underwriting Package and the documents set forth in (a) above; provided that, if Buyer has not communicated its final non-binding indication to Seller by such date, Buyer shall automatically and without further action be deemed to have determined not to purchase any such Asset and Seller shall be permitted to sell such Assets without having to further provide Buyer its Purchase Option provided for in Section 18.23 .

(c) If Buyer communicates to Seller a final non-binding determination that it is willing to purchase any or all of such Assets, Seller shall deliver to Buyer an executed preliminary Confirmation for such Transaction, describing each such Asset and its proposed Purchase Date, Market Value, Applicable Percentage, Purchase Price and such other terms and conditions as Buyer may require in its discretion. If Buyer in its discretion requires changes to the preliminary Confirmation, Seller shall make such changes and re-execute the preliminary Confirmation if Seller still intends to sell such Asset based on the changes requested to the Confirmation by Buyer. If Buyer determines in its discretion to enter into the Transaction on the terms described in the preliminary Confirmation or revised Confirmation, Buyer shall promptly execute and return the same to Seller, which shall thereupon become effective as the Confirmation of the Transaction. Buyer shall approve or disapprove in writing each Transaction

 

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Request within twenty (20) Business Days from the date Buyer receives a complete Underwriting Package; provided that any failure of Buyer to approve or disapprove the purchase of any proposed Purchased Asset within the time frame specified above shall automatically and without further action from Buyer be deemed to be a denial of the related Transaction Request and Seller shall be permitted to sell such Assets without having to further provide Buyer its Purchase Option provided for in Section 18.23 . Buyer’s approval of the purchase of an Asset on such terms and conditions as Buyer may require in its discretion shall be evidenced only by its execution and delivery of the related Confirmation. For the avoidance of doubt, Buyer shall not (i) be bound by any preliminary or final non-binding determination referred to above, (ii) be deemed to have approved the purchase of an Asset by virtue of the approval or entering into by Buyer of a rate lock agreement, Interest Rate Protection Agreement, total return swap or any other agreement with respect to such Asset, or (iii) be obligated to purchase an Asset notwithstanding a Confirmation executed by the Parties unless and until all applicable conditions precedent in Article 6 have been satisfied or waived by Buyer in its discretion and unless and until Buyer remits the related Purchase Price to Seller on the applicable Purchase Date.

(d) Buyer shall determine in its discretion whether or not it is willing to purchase any or all of the proposed Assets, and if so, on what terms and conditions. It is expressly agreed and acknowledged that Buyer is entering into the Transactions on the basis of all such representations and warranties and on the completeness and accuracy of the information contained in the applicable Underwriting Package, and any incompleteness or inaccuracies in the related Underwriting Package will only be acceptable to Buyer if disclosed in writing to Buyer by Seller and accepted in writing by Buyer in advance of the related Purchase Date, and then only if Buyer opts to purchase the related Purchased Asset from Seller notwithstanding such incompleteness and inaccuracies.

(e) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction covered thereby, and shall be construed to be cumulative to the extent possible. If terms in a Confirmation are inconsistent with terms in this Agreement with respect to a particular Transaction, the Confirmation shall prevail. Whenever the Applicable Percentage, Excess Funding Capacity or any other term of a Transaction (other than the Pricing Rate, Market Value and outstanding Purchase Price) with respect to an Asset is revised or adjusted in accordance with this Agreement, an amended and restated Confirmation reflecting such revision or adjustment and that is otherwise acceptable to the Parties shall be prepared by Seller and executed by the Parties.

(f) The fact that Buyer has conducted or has failed to conduct any partial or complete examination or any other due diligence review of any Asset or Purchased Asset shall in no way affect any rights Buyer may have under the Repurchase Documents or otherwise with respect to any representations or warranties or other rights or remedies thereunder or otherwise, including the right to determine at any time that such Asset or Purchased Asset is not an Eligible Asset.

(g) No Transaction shall be entered into if (i) any Margin Deficit, Default or Event of Default exists or would exist as a result of such Transaction, (ii) the Repurchase Date for the Purchased Assets subject to such Transaction would be later than the Maturity Date, or (iii) after giving effect to such Transaction, the aggregate Repurchase Price of all Purchased

 

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Assets subject to Transactions then outstanding would exceed the Maximum Amount, other than Transactions where Buyer agrees to apply the related proceeds thereof to cure the underlying Margin Deficit.

(h) The purchase of each Purchased Asset by Buyer pursuant to this Agreement shall be deemed a determination by Buyer that, as of the Purchase Date, such Purchased Asset meets the LTV/LTC Test as of the applicable Purchase Date (calculated on an individual basis); provided that such deemed determination shall only be effective to the extent that all of the representations and warranties in respect of such Purchased Asset are true and correct in all material respects and all of the information provided to Buyer in respect of such Purchased Asset is accurate and complete in all material respects.

Section 3.02 Transfer of Purchased Assets; Servicing Rights . On the Purchase Date for each Purchased Asset, and subject to the satisfaction of all applicable conditions precedent in Article 6 , (a) ownership of and title to such Purchased Asset shall be transferred to and vest in Buyer or its designee against the simultaneous transfer of the Purchase Price to the account of Seller specified in Annex 1 (or if not specified therein, in the related Confirmation or as directed by Seller), and (b) Seller hereby sells, transfers, conveys and assigns to Buyer on a servicing-released basis all of Seller’s right, title and interest (but no Retained Interests) in and to such Purchased Asset. Subject to this Agreement, during the Funding Period, Seller may sell to Buyer, repurchase from Buyer and re-sell Eligible Assets to Buyer, but may not substitute other Eligible Assets for Purchased Assets, provided that any such resale shall be subject to the same terms and conditions applicable to the original Purchased Asset. Buyer has the right to designate the servicer and sub-servicer of the Purchased Assets, the Servicing Rights and other servicing provisions under this Agreement are not severable from or to be separated from the Purchased Assets under this Agreement, the Fee and Pricing Letter and the Servicing and Sub-Servicing Agreement, and such Servicing Rights and other servicing provisions of this Agreement constitute (a) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or other arrangement or other credit enhancement related to the Repurchase Documents.

Section 3.03 Excess Funding Capacity . The terms and provisions governing Excess Funding Capacity under this Section 3.03 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

Section 3.04 Maximum Amount . The aggregate outstanding Purchase Price for all Purchased Assets as of any date shall not exceed the Maximum Amount. If such aggregate outstanding Purchase Price exceeds the Maximum Amount, Seller shall no later than three (3) Business Days after written notice from Buyer pay to Buyer an amount necessary to reduce such aggregate outstanding Purchase Price to an amount equal to or less than the Maximum Amount.

Section 3.05 Early Repurchase Date; Mandatory Repurchases . Seller may terminate any Transaction with respect to any or all Purchased Assets and repurchase such Purchased Assets on any date prior to the Repurchase Date (an “ Early Seller Demand Repurchase Date ”); provided , that (a) Seller irrevocably notifies Buyer at least five (5) Business Days before the proposed Early Repurchase Date identifying the Purchased Asset(s) to be repurchased and the Repurchase Price thereof, (b) no Margin Deficit, Default or Event of Default

 

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exists or would exist as a result of such repurchase (unless the repurchase in question would result in the satisfaction in full of the related Margin Deficit), (c) if the Early Seller Demand Repurchase Date is not a Remittance Date, Seller pays Buyer any amounts due under Section 12.03 and (d) Seller thereafter complies with Section 3.06 .

In addition to other rights and remedies of Buyer under any Repurchase Document, following a determination by Buyer that any Purchased Asset no longer qualifies as an Eligible Asset, Seller shall, upon three (3) Business Days prior written notice from Buyer, repurchase any such Purchased Asset (at its applicable Repurchase Price).

Section 3.06 Repurchase . On the Repurchase Date for each Purchased Asset, Seller shall transfer to Buyer the Repurchase Price for such Purchased Asset as of the Repurchase Date, and Buyer shall transfer to Seller such Purchased Asset, whereupon the Transaction with respect to such Purchased Asset shall terminate. Buyer shall be deemed to have simultaneously released its security interest in such Purchased Asset, shall, at Seller’s request, authorize Custodian to promptly release to Seller the Whole Loan Documents or Senior Interest Documents for such Purchased Asset, deliver terminations of security documents specifically relating to such Purchased Asset and, to the extent any UCC financing statement filed against Seller specifically identifies such Purchase Asset, Buyer shall deliver an amendment thereto or termination thereof evidencing the release of such Purchased Asset from Buyer’s security interest therein. Any such transfer or release shall be without recourse to Buyer and without representation or warranty by Buyer, except that Buyer shall represent to Seller, to the extent that good title was transferred and assigned by Seller to Buyer hereunder on the related Purchase Date, that Buyer is the sole owner of the related Purchased Asset, free and clear of any other interests or Liens caused by (a) Buyer’s actions or inactions and (b) so long as Servicer is Buyer or an Affiliate of Buyer, the actions or inactions of Servicer. Any Income with respect to such Purchased Asset received by Buyer or Waterfall Account Bank after payment of the Repurchase Price therefor shall be promptly remitted to Seller. Notwithstanding the foregoing, on or before the Maturity Date, Seller shall repurchase all Purchased Assets by paying to Buyer the outstanding Repurchase Price therefor and all other outstanding Repurchase Obligations.

Notwithstanding any provision to the contrary contained elsewhere in any Repurchase Document, at any time during the existence of an uncured Event of Default, one-hundred percent (100%) of the net proceeds due from an Underlying Obligor in connection with the payoff of an underlying Whole Loan by such Underlying Obligor shall be paid directly to Buyer towards payment of the Repurchase Obligations of the related Purchased Asset. The portion of all such net proceeds in excess of the then-current Repurchase Price of the related Purchased Asset shall be applied in Buyer’s discretion to reduce any other amounts due and payable to Buyer under this Agreement.

Section 3.07 Extension Option .

(a) Extension of the Maturity Date . At the request of Seller delivered to Buyer no earlier than sixty (60) or later than thirty (30) days before the initial Maturity Date or the first Extended Maturity Date, as applicable, Buyer shall, upon the satisfaction of each of the conditions set forth below, grant an extension of the initial Maturity Date or the first Extended Maturity Date, as applicable, for a period with respect to each such extension, of one year (each,

 

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an “ Extended Maturity Date ”) by giving notice approving such extension and the Extended Maturity Date to Seller no later than twenty (20) days before the expiration of the then-current Maturity Date. Any extension of the initial Maturity Date or the first Extended Maturity Date, as applicable, shall be subject to the following: (i) no Default or Event of Default exists on the date of the request to extend or the then-current Maturity Date, (ii) no Margin Deficit shall be outstanding, (iii) Seller shall be in compliance with each of the Debt Yield Test and the LTV/LTC Test, (iv) all Purchased Assets must qualify as Eligible Assets, and (v) the payment by Seller to Buyer of the Extension Fee on or before the then-current Maturity Date.

(b) Extension of Repurchase Dates . At the request of Seller delivered to Buyer no earlier than sixty (60) and no later than thirty (30) days before the then-current Repurchase Date, Seller may elect to extend the Repurchase Date for any Purchased Asset for additional periods of three hundred sixty-four (364) days each (but in no event beyond the then-current Maturity Date or Extended Maturity Date) so long as (i) no Default or Event of Default exists on the date of the request to extend the Repurchase Date or as of the then-current Repurchase Date, (ii) the related Purchased Asset continues to qualify as an Eligible Asset, (iii) no Margin Deficit shall be outstanding and (iv) immediately prior to and immediately after giving effect to such extension of any Repurchase Date, the Debt Yield Test and the LTV/LTC Test are each satisfied.

Section 3.08 Payment of Price Differential and Fees .

(a) Notwithstanding that Buyer and Seller intend that the Transactions hereunder be sales to Buyer of the Purchased Assets, Seller shall pay to Buyer the accrued value of the Price Differential for each Purchased Asset on each Remittance Date. Buyer shall give Seller notice of the Price Differential and any fees and other amounts due under the Repurchase Documents on or prior to the second (2nd) Business Day preceding each Remittance Date; provided, that Buyer’s failure to deliver such notice shall not affect Seller’s obligation to pay such amounts. If the Price Differential includes any estimated Price Differential, Buyer shall recalculate such Price Differential after the Remittance Date and, if necessary, make adjustments to the Price Differential amount due on the following Remittance Date.

(b) Seller shall pay to Buyer all fees and other amounts as and when due as set forth in this Agreement including, without limitation:

(i) the Non-Utilization Fee, which shall be due and payable by Seller and Guarantor on the first anniversary of the Closing Date, or, if sooner, on the date of the termination of this Agreement for any reason. Additional terms and provisions governing the Non-Utilization Fee are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

(ii) the Commitment Fee, which shall be due and payable by Seller on the Closing Date.

(iii) the Funding Fee, which shall be payable by Seller annually on each anniversary of the Closing Date (but not including the Closing Date) occurring on or before the initial Maturity Date; and

 

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(iv) the Extension Fee, which shall be due and payable by Seller on the date of the exercise by Seller of each extension of the Maturity Date.

Section 3.09 Payment, Transfer and Custody .

(a) Unless otherwise expressly provided herein, all amounts required to be paid or deposited by Seller hereunder shall be paid or deposited in accordance with the terms hereof no later than 3:00 p.m. on the day when due, in immediately available Dollars and without deduction, setoff or counterclaim, and if not received before such time shall be deemed to be received on the next Business Day. Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next following Business Day, and such extension of time shall in such case be included in the computation of such payment. If Seller fails to pay all or part of any Repurchase Price amount by 5:00 p.m., New York City time on any date when due, Buyer may require Seller to pay (in addition to, and together with, such past-due Repurchase Price) a late fee equal to one-half of one percent (0.50%) of the total amount of such late payment, plus interest on such past-due Repurchase Price as provided in Section 18.16 , until all such past-due Repurchase Price is received in full by Buyer. Amounts payable to Buyer and not otherwise required to be deposited into the Waterfall Account shall be deposited into an account of Buyer. Other than as specified in Section 3.06 of this Agreement, Seller shall have no rights in, rights of withdrawal from, or rights to give notices or instructions regarding Buyer’s account, the Waterfall Account or any Servicer Account.

(b) Any Whole Loan Documents or Senior Interest Documents not delivered to Buyer or Custodian are and shall be held in trust by Seller or its agent for the benefit of Buyer as the owner thereof. Seller or its agent shall maintain a copy of the Whole Loan Documents and the originals of the Whole Loan Documents and the Senior Interest Documents not delivered to Buyer or Custodian. The possession of Whole Loan Documents and the Senior Interest Documents by Seller or its agent is in a custodial capacity only at the will of Buyer for the sole purpose of assisting Sub-Servicer with its duties under the Servicing and Sub-Servicing Agreement. Each Whole Loan Document and Senior Interest Document retained or held by Seller or its agent shall be segregated on Seller’s books and records from the other assets of Seller or its agent, and the books and records of Seller or its agent shall be marked to reflect clearly the sale of the related Purchased Asset to Buyer on a servicing-released basis. Seller or its agent shall release its custody of the Whole Loan Documents and the Senior Interest Documents only in accordance with written instructions from Buyer, unless such release is required as incidental to the sub-servicing of the Purchased Assets by Sub-Servicer or is in connection with a repurchase of any Purchased Asset by Seller, in each case in accordance with the Custodial Agreement.

Section 3.10 Repurchase Obligations Absolute . All amounts payable by Seller under the Repurchase Documents shall be paid without notice or demand (except, in each case, as provided in Section 3.05 ), and without counterclaim, setoff, deduction or defense (as to any Person and for any reason whatsoever) and without abatement, suspension, deferment, diminution or reduction (as to any Person and for any reason whatsoever), and the Repurchase Obligations shall not be released, discharged or otherwise affected, except as expressly provided herein, by reason of: (a) any damage to, destruction of, taking of, restriction or prevention of the use of, interference with the use of, title defect in, encumbrance on or eviction from, any

 

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Purchased Asset or related Underlying Mortgaged Property, (b) any Insolvency Proceeding relating to Seller or any Underlying Obligor, or any action taken with respect to any Repurchase Document, Whole Loan Document or Senior Interest Document by any trustee or receiver of Seller or any Underlying Obligor or by any court in any such proceeding, (c) any claim that Seller has or might have against Buyer under any Repurchase Document or otherwise, (d) any default or failure on the part of Buyer to perform or comply with any Repurchase Document or other agreement with Seller, (e) the invalidity or unenforceability of any Purchased Asset, Repurchase Document, Whole Loan Document or Senior Interest Document, or (f) any other occurrence whatsoever, whether or not similar to any of the foregoing, and whether or not Seller has notice or Knowledge of any of the foregoing. The Repurchase Obligations shall be full recourse to Seller. This Section 3.10 shall survive the termination of the Repurchase Documents and the payment in full of the Repurchase Obligations.

ARTICLE 4

MARGIN MAINTENANCE

Section 4.01 Margin Deficit.

(a) The terms and provisions governing Margin Deficits and Margin Calls under this Section 4.01(a) are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

(b) Buyer’s election in its discretion not to deliver a Margin Call notice at any time there is a Margin Deficit shall not waive the Margin Deficit or in any way limit or impair Buyer’s right to deliver a Margin Call notice at any time when the same or any other Margin Deficit exists. Buyer’s rights under this Section 4.01 are in addition to and not in lieu of any other rights of Buyer under the Repurchase Documents or Requirements of Law.

(c) All cash transferred to Buyer pursuant to this Section 4.01 with respect to a Purchased Asset shall be deposited into the Waterfall Account, except as directed by Buyer in its discretion, and notwithstanding any provision in Section 5.02 to the contrary, shall be applied to reduce the Purchase Price of such Purchased Asset.

Section 4.02 Margin Excess . The terms and provisions governing Margin Excess under this Section 4.02 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

ARTICLE 5

APPLICATION OF INCOME

Section 5.01 Waterfall Account; Servicing Agreement Account . The Waterfall Account and the Servicing Agreement Account shall be established at the Waterfall Account Bank. Buyer shall have sole dominion and control (including, without limitation, “control” within the meaning of Section 9-104(a) of the UCC) over the Waterfall Account and the Servicing Agreement Account. Neither Seller nor any Person claiming through or under Seller

 

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shall have any claim to or interest in the Waterfall Account or the Servicing Agreement Account. All Income received by Seller, Buyer or Waterfall Account Bank in respect of the Purchased Assets, as well as any interest received from the reinvestment of such Income, (other than amounts of reinvestment income permitted to be retained by Servicer as additional servicing compensation in accordance with Section 3.03(c) of the Servicing and Sub-Servicing Agreement) shall be deposited directly into the Waterfall Account (in the case of amounts deposited by Servicer, such deposits to the Waterfall Account shall occur from the Servicing Agreement Account in accordance with Section 3.06 of the Servicing and Sub-Servicing Agreement) and shall be applied to and remitted by Waterfall Account Bank in accordance with this Article 5 . Notwithstanding the foregoing, so long as the Servicing and Sub-Servicing Agreement is in full force and effect and TRT Lending LLC is acting as Sub-Servicer thereunder, all amounts to be paid or are otherwise received from, or on behalf of, a related Underlying Obligor shall be paid either (a) to Sub-Servicer to be retained or remitted to Servicer under the Servicing and Sub-Servicing Agreement or (b) directly to the Servicing Agreement Account and, thereafter, remitted to the Waterfall Account, in each case in accordance with the terms of the Servicing and Sub-Servicing Agreement.

Section 5.02 Before a Default or an Event of Default . If no Default or Event of Default exists, all Income described in Section 5.01 and deposited into the Waterfall Account during each Pricing Period shall be applied by Waterfall Account Bank by no later than the next following Remittance Date in the following order of priority:

first , to pay all then-currently due and payable servicing fees to Buyer (or its designated Servicer), and to reimburse Buyer (or its designated Servicer) for any and all costs, expenses, advances and similar amounts incurred by Buyer (or its designated Servicer) in connection with the servicing of the Purchased Assets, if not previously deducted by Servicer from the Servicer Agreement Account;

second , to pay to Buyer an amount equal to the Price Differential accrued with respect to all Purchased Assets as of such Remittance Date;

third , to pay to Buyer an amount equal to all default interest, late fees, fees, expenses and Indemnified Amounts then due and payable from Seller and other applicable Persons to Buyer under the Repurchase Documents;

fourth , to pay to Buyer an amount sufficient to eliminate any outstanding Margin Deficit (without limiting Seller’s obligation to satisfy a Margin Deficit in a timely manner as required by Section 4.01 );

fifth , to pay any custodial fees and expenses due and payable under the Custodial Agreement;

s ixth , to pay to Buyer, the Applicable Percentage of any Principal Payments, but only to the extent that such remittance would not result in the creation of a Margin Deficit, to be applied to reduce the outstanding Purchase Price of Purchased Assets, as Buyer shall determine in its discretion, with the balance of any such Principal Payments to be paid to Seller for its own account, subject, however, to the covenants and other requirements of the Repurchase Documents;

 

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seventh , to pay to Buyer any other amounts due and payable from Seller and other applicable Persons to Buyer under the Repurchase Documents; and

eighth , to pay to Seller any remainder for its own account, subject, however, to the covenants and other requirements of the Repurchase Documents.

Section 5.03 After a Default or an Event of Default . If a Default or an Event of Default exists, all Income deposited into the Waterfall Account in respect of the Purchased Assets shall be applied by Waterfall Account Bank, on the Business Day next following the Business Day on which each amount of Income is so deposited, in the following order of priority:

first , to pay all then-currently due and payable servicing fees to Buyer (or its designated Servicer), and to reimburse Buyer (or its designated Servicer) for any and all costs, expenses, advances and similar amounts incurred by Buyer (or its designated Servicer) in connection with the servicing of the Purchased Assets, if not previously deducted by Servicer from the Servicer Agreement Account;

second , to pay to Buyer an amount equal to the Price Differential accrued with respect to all Purchased Assets as of such Remittance Date;

third , to pay to Buyer an amount equal to all default interest, late fees, fees, expenses and Indemnified Amounts then due and payable from Seller and other applicable Persons to Buyer under the Repurchase Documents;

fourth , to pay any custodial fees and expenses due and payable under the Custodial Agreement;

fifth , to pay to Buyer an amount equal to the aggregate Repurchase Price of all Purchased Assets (to be applied in such order and in such amounts as determined by Buyer in its discretion, until such Purchase Price has been reduced to zero) plus all other amounts due to Buyer under the Repurchase Documents;

sixth , to pay to Buyer all other Repurchase Obligations due to Buyer; and

seventh , to pay to Seller any remainder for its own account.

Section 5.04 Seller to Remain Liable . If the amounts remitted to Buyer as provided in Sections 5.02 and 5.03 are insufficient to pay all amounts due and payable from Seller to Buyer under this Agreement or any Repurchase Document on a Remittance Date, a Repurchase Date, upon the occurrence of an Event of Default or otherwise, Seller shall nevertheless remain liable for and shall pay to Buyer when due all such amounts.

 

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ARTICLE 6

CONDITIONS PRECEDENT

Section 6.01 Conditions Precedent to Initial Transaction . Buyer shall not be obligated to enter into any Transaction or purchase any Asset until the following conditions have been satisfied in the discretion of Buyer, or waived by Buyer in its discretion, on and as of the Closing Date and the initial Purchase Date:

(a) Buyer has received the following documents, each dated the Closing Date or as of the Closing Date unless otherwise specified: (i) each Repurchase Document duly executed and delivered by the parties thereto, (ii) an official good standing certificate dated a recent date with respect to Seller (including in each jurisdiction where any Underlying Mortgaged Property is located to the extent necessary for Buyer to enforce its rights and remedies thereunder), (iii) certificates of the secretary or an assistant secretary of Seller with respect to attached copies of the Governing Documents and applicable resolutions of Seller, and the incumbencies and signatures of officers of Seller executing the Repurchase Documents to which it is a party, evidencing the authority of Seller with respect to the execution, delivery and performance thereof, (iv) a Closing Certificate, (v) an executed power of attorney of Seller substantially in the form attached as Exhibit F , (vi) such opinions from counsel to Seller as Buyer may require in its discretion, including with respect to corporate matters, perfection of security interests, true sale, and the applicability of Bankruptcy Code safe harbors, (vii) such opinions from counsel to Custodian as Buyer may require in its discretion, (viii) a copy of a recently issued officer’s certificate, including back-up calculations, confirming compliance with REIT asset tests and income tests and (ix) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as it may reasonably require in its discretion;

(b)(i) UCC financing statements have been filed against Seller in all filing offices required by Buyer, (ii) Buyer has received such searches of UCC filings, tax liens, judgments, pending litigation and other matters relating to Seller and the Purchased Assets as Buyer may require in its discretion, and (iii) the results of such searches are satisfactory to Buyer in its discretion;

(c) Buyer has received payment from Seller of all fees and expenses then payable under the Fee and Pricing Letter and the other Repurchase Documents, as contemplated by Section 13.02 ; and

(d) Buyer has completed to its satisfaction such due diligence and modeling as it may require in its discretion.

 

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Section 6.02 Conditions Precedent to All Transactions . Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer in its discretion, with respect to each Asset on and as of the Purchase Date therefor:

(a) Buyer has received the following documents, executed, if necessary, by the appropriate party thereto: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) an Omnibus Assignment, and (vii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require in its discretion;

(b) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Material Adverse Effect or Market Disruption Event exists;

(c) Buyer has completed its due diligence review of the Underwriting Package, Whole Loan Documents and such other documents, records and information as Buyer in its discretion deems appropriate, and the results of such reviews are satisfactory to Buyer in its discretion;

(d) Buyer has in its discretion (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;

(e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;

(f) the Purchase Date is not later than the Funding Expiration Date and the Repurchase Date is not later than the then-current Maturity Date;

(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;

(h) to the extent the related Whole Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;

(i)(i) Buyer has received a copy of any Interest Rate Protection Agreement, if required, and related documents entered into with respect to such Asset; provided, however, that with respect to Assets purchased on the Closing Date, such Interest Rate Protection Agreement shall be delivered within sixty (60) days thereafter and with respect to Assets purchased after the Closing Date, such Interest Rate Protection Agreement shall be delivered within thirty (30) days of purchase, (ii) Seller has assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and (iii) no termination event, default or event of default (however defined) exists thereunder;

 

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(j) Buyer shall have received executed blank assignments of all Whole Loan Documents in appropriate form for recording in the jurisdiction in which the underlying real estate is located, and executed blank assignments of all Senior Interest Documents (the “ Blank Assignment Documents ”); and

(k) For all Assets acquired from or originated by an Affiliate of Seller, such Asset (other than the Original Purchased Assets) has not been and is not being transferred (directly or indirectly) by or through Guarantor or any Relevant Affiliate, and counsel to Seller has delivered to Buyer a true sale opinion in form and substance acceptable to Buyer (in its sole discretion), which opinion makes no assumptions for, and takes no qualifications with respect to (x) consolidation of Seller with any Affiliate thereof or (y) consolidation of the transferor of such Asset with any other Person (other than the opinion delivered on the Closing Date with respect to the Original Purchased Assets).

Each Confirmation delivered by Seller shall constitute a certification by Seller that all of the conditions precedent in this Article 6 (other than those which must be satisfied solely by Buyer) have been satisfied.

The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer in its discretion on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within three (3) Business Days of notice of such rescission, pay to Buyer the Repurchase Price of such Purchased Asset.

ARTICLE 7

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants, on and as of the date of this Agreement, each Purchase Date, and at all times when any Repurchase Document or Transaction is in full force and effect, as follows:

Section 7.01 Seller . Seller has been duly organized and validly exists in good standing as a corporation, limited liability company or limited partnership, as applicable, under the laws of the jurisdiction of its incorporation, organization or formation. Seller (a) has all requisite power, authority, legal right, licenses and franchises, (b) is duly qualified to do business in all jurisdictions necessary, and (c) has been duly authorized by all necessary action, to (w) own, lease and operate its properties and assets, (x) conduct its business as presently conducted, (y) execute, deliver and perform its obligations under the Repurchase Documents to which it is a party, and (z) acquire, own, sell, assign, pledge and repurchase the Purchased Assets. Seller’s exact legal name is set forth in the preamble and signature pages of this Agreement. Seller’s location (within the meaning of Article 9 of the UCC), and the office where Seller keeps all records (within the meaning of Article 9 of the UCC) relating to the Purchased Assets is at the address of Seller referred to in Annex 1 . Seller has not changed its name or location within the past twelve (12) months. Seller’s organizational identification number is 4834405 and its tax identification number is 27-2865025. Seller has no subsidiaries and is a

 

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wholly-owned Subsidiary of Pledgor. The fiscal year of Seller is the calendar year. Seller has no Indebtedness, Contractual Obligations or investments other than (a) ordinary trade payables, (b) in connection with Assets acquired or originated for the Transactions, and (c) the Repurchase Documents, including for the avoidance of doubt, any Interest Rate Protection Agreements required by this Agreement. Seller has no Guarantee Obligations.

Section 7.02 Repurchase Documents . Each Repurchase Document to which Seller is a party has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as such enforceability may be limited by Insolvency Laws and general principles of equity. The execution, delivery and performance by Seller of each Repurchase Document to which it is a party do not and will not (a) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under, any (i) Governing Document, Indebtedness, Guarantee Obligation or Contractual Obligation applicable to Seller or any of its properties or assets, (ii) Requirements of Law, or (iii) approval, consent, judgment, decree, order or demand of any Governmental Authority, or (b) result in the creation of any Lien (other than Permitted Liens) on any of the properties or assets of Seller. All approvals, authorizations, consents, orders, filings, notices or other actions of any Person or Governmental Authority required for the execution, delivery and performance by Seller of the Repurchase Documents to which it is a party and the sale of and grant of a security interest in each Purchased Asset to Buyer, have been obtained, effected, waived or given and are in full force and effect. The execution, delivery and performance of the Repurchase Documents do not require compliance by Seller with any “bulk sales” or similar law. There is no material litigation, proceeding or investigation pending or, to Seller’s Knowledge, threatened, against Seller, Guarantor or any Relevant Affiliate, before any Governmental Authority (a) asserting the invalidity of any Repurchase Document, (b) seeking to prevent the consummation of any Transaction, or (c) seeking any determination or ruling that could reasonably be expected to have a Material Adverse Effect.

Section 7.03 Solvency . None of Seller, Guarantor or any Relevant Affiliate, is or has ever been the subject of an Insolvency Proceeding. Seller, Guarantor, and each Relevant Affiliate is Solvent and the Transactions do not and will not render Seller, Guarantor, or any Relevant Affiliate not Solvent. Seller is not entering into the Repurchase Documents or any Transaction with the intent to hinder, delay or defraud any creditor of Seller, Guarantor or any Relevant Affiliate. Seller has received or will receive reasonably equivalent value for the Repurchase Documents and each Transaction. Seller has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. Seller is generally able to pay, and as of the date hereof is paying, its debts as they come due.

Section 7.04 Taxes . Seller, Guarantor and each Relevant Affiliate have each filed all required federal income tax returns and all other material tax returns, domestic and foreign, required to be filed by them and have paid all material taxes (including mortgage recording taxes), assessments, fees, and other governmental charges payable by them, or with respect to any of their properties or assets, that have become due, and income or franchise taxes have been paid or are being contested in good faith by appropriate proceedings diligently conducted and for which appropriate reserves have been established in accordance with GAAP. Seller, Guarantor and each Relevant Affiliate have paid, or have provided adequate reserves for

 

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the payment of, all such taxes for all prior fiscal years and for the current fiscal year to date. There is no material action, suit, proceeding, investigation, audit or claim relating to any such taxes now pending or, to the Knowledge of Seller, threatened by any Governmental Authority that is not being contested in good faith as provided above and with respect to which reserves in conformity with GAAP have been provided on the books of Seller. Seller is a disregarded entity of OP for U.S. federal income tax purposes and OP is a partnership for U.S. federal income tax purposes, of which Parent is the general partner. Neither Seller nor Guarantor has entered into any agreement or waiver or been requested to enter into any agreement or waiver extending any statute of limitations relating to the payment or collection of taxes, or is aware of any circumstances that would cause the taxable years or other taxable periods of Seller or Guarantor not to be subject to the normally applicable statute of limitations. No tax liens have been filed against any assets of Seller or Guarantor. Seller does not intend to treat any Transaction as being a “reportable transaction” as defined in Treasury Regulation Section 1.6011-4. If Seller determines to take any action inconsistent with such intention, it will promptly notify Buyer, in which case Buyer may treat each Transaction as subject to Treasury Regulation Section 301.6112-1 and will maintain the lists and other records required thereunder.

Section 7.05 Financial Condition . The audited balance sheet of Guarantor as at the fiscal year most recently ended for which such audited balance sheet is available, and the related audited statements of income and retained earnings and of cash flows for the fiscal year then ended, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification arising out of the audit conducted by Guarantor’s independent certified public accountants, copies of which have been delivered to Buyer, are complete and correct in all material respects and present fairly the financial condition of Guarantor as of such date and the results of its operations and cash flows for the fiscal year then ended. All such financial statements, including related schedules and notes, were prepared in accordance with GAAP except as disclosed therein. Guarantor does not have any material contingent liability or liability for taxes or any long term lease or unusual forward or long term commitment, including any Derivative Contract, which is not reflected in the foregoing statements or notes. Since the date of the financial statements and other information delivered to Buyer prior to the Closing Date, none of Seller, Guarantor, any Relevant Affiliate has sold, transferred or otherwise disposed of any material part of its property or assets (except pursuant to the Repurchase Documents) or acquired any property or assets (including Equity Interests of any other Person) that are, in each case, material in relation to the financial condition of Seller.

Section 7.06 True and Complete Disclosure . The information, reports, certificates, documents, financial statements, operating statements, forecasts, books, records, files, exhibits and schedules furnished by or on behalf of Seller to Buyer in connection with the Repurchase Documents and the Transactions, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of Seller to Buyer in connection with the Repurchase Documents and the Transactions will be true, correct and complete in all material respects, or in the case of projections will be based on reasonable estimates prepared and presented in good faith, on the date as of which such information is stated or certified, but in any event any projections shall not be deemed to be guarantees of financial performance.

 

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Section 7.07 Compliance with Laws . Seller has complied in all material respects with all Requirements of Laws, and no Purchased Asset contravenes in any material respect any Requirements of Laws. None of Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing (a) is an “enemy” or an “ally of the enemy” as defined in the Trading with the Enemy Act of 1917, (b) is in violation of any Anti-Terrorism Laws, (c) is a blocked person described in Section 1 of Executive Order 13224 or to its Knowledge engages in any dealings or transactions or is otherwise associated with any such blocked person, (d) is in violation of any country or list based economic and trade sanction administered and enforced by the Office of Foreign Assets Control, (e) is a Sanctioned Entity, (f) has more than 10% of its assets located in Sanctioned Entities, or (g) derives more than 10% of its operating income from investments in or transactions with Sanctioned Entities. The proceeds of any Transaction have not been and will not be used to fund any operations in, finance any investments or activities in or make any payments to a Sanctioned Entity. Seller is a “qualified purchaser” as defined in the 40 Act. Seller, Guarantor and each Relevant Affiliate is not and is not controlled by an “investment company” as defined in the 40 Act or is exempt from the provisions of the 40 Act, (b) is a “broker” or “dealer” as defined in, or could be subject to a liquidation proceeding under, the Securities Investor Protection Act of 1970, or (c) is subject to regulation by any Governmental Authority limiting its ability to enter into the Repurchase Documents to which it is a party or, in the case of Seller, to incur the Repurchase Obligations or, in the case of Guarantor, to incur the Guarantee Obligation. No properties presently owned or leased by Seller or Guarantor contain, to their Knowledge, any Materials of Environmental Concern that constitute or constituted a violation of Environmental Laws or reasonably could be expected to give rise to liability of Seller or Guarantor thereunder except with respect to Guarantor where any such event could reasonably be expected, solely with respect to Guarantor, to have a Material Adverse Effect. None of Seller or Guarantor has Knowledge of any potential liability of Seller under any Environmental Law, which, solely with respect to Guarantor, could reasonably be expected to have a Material Adverse Effect. To Seller’s or Guarantor’s Knowledge, Materials of Environmental Concern have not been released, transported, generated, treated, stored or disposed of at any property currently owned or leased by Seller or Guarantor in violation of Environmental Laws or in a manner that could reasonably be expected to give rise to liability of Seller or Guarantor thereunder which liability, solely with respect to Guarantor, could reasonably be expected to have a Material Adverse Effect. Seller, Guarantor, each Relevant Affiliate and each Affiliate of any of the foregoing are in compliance with the Foreign Corrupt Practices Act of 1977 and any foreign counterpart thereto. None of Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing has made, offered, promised or authorized a payment of money or anything else of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to any foreign official, foreign political party, party official or candidate for foreign political office, or (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing or any other Person, in each case, in violation of the Foreign Corrupt Practices Act.

Section 7.08 Compliance with ERISA . With respect to Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing, during the immediately preceding five (5) year period, (a) neither a Reportable Event nor an “accumulated funding deficiency” as defined in the Code or ERISA has occurred, (b) each Plan has complied in all material respects

 

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with the applicable provisions of the Code and ERISA, (c) no termination of a Single Employer Plan has occurred resulting in any liability that has remained underfunded, and (d) no Lien in favor of the Pension Benefit Guaranty Commission or a Plan has arisen. The present value of all accrued benefits under each Single Employer Plan (based on the assumptions used to fund such Plan) relating to Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing did not, as of the last annual valuation date prior to the date hereof, exceed the value of the assets of such Plan allocable to such accrued benefits. None of Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing is currently subject to any liability for a complete or partial withdrawal from a Multiemployer Plan.

Section 7.09 No Default or Material Adverse Effect . No Default or Event of Default exists. No default or event of default (however defined) exists under any Indebtedness, Guarantee Obligations or Contractual Obligations of Seller. Seller believes that it is and will be able to pay and perform each agreement, duty, obligation and covenant contained in the Repurchase Documents, the Whole Loan Documents and the Senior Interest Documents to which it is a party, and that it is not subject to any agreement, obligation, restriction or Requirements of Law that would unduly burden its ability to do so or could reasonably be expected to have a Material Adverse Effect. Seller has no Knowledge of any actual or prospective development, event or other fact that could reasonably be expected to have a Material Adverse Effect. No Internal Control Event has occurred. No Servicing Agreements exist with respect to any of the Purchased Assets. Seller has delivered to Buyer copies of all credit facilities, repurchase facilities and substantially similar facilities of Seller that are presently in effect, and no default or event of default (however defined) on the part of Seller exists thereunder.

Section 7.10 Purchased Assets . Each Purchased Asset is an Eligible Asset. Each representation and warranty set forth in the Repurchase Documents (including in Schedule 1 applicable to the Class of such Purchased Asset) and the Whole Loan Documents or Senior Interest Documents with respect to each Purchased Asset is true and correct in all material respects. The review and inquiries made on behalf of Seller in connection with the immediately preceding sentence have been made by Persons having the requisite expertise, knowledge and background to verify such representations and warranties. Seller has complied with all requirements of the Custodial Agreement with respect to each Purchased Asset that are applicable to Seller, including delivery to Custodian of all required Whole Loan Documents and Senior Interest Documents. Seller has no Knowledge of any fact that could reasonably lead it to expect that any Purchased Asset will not be paid in full. No Purchased Asset is or has been the subject of any compromise, adjustment, extension, satisfaction, subordination, rescission, setoff, counterclaim, defense, abatement, suspension, deferment, deduction, reduction, termination or modification, whether arising out of transactions concerning such Purchased Asset or otherwise, by Seller, Guarantor or any Affiliate of Seller or Guarantor, Underlying Obligor or other Person, except as set forth in the Transaction Request, Confirmation, Whole Loan Documents or the Senior Interest Documents delivered to Buyer. No procedures believed by Seller to be adverse to Buyer were utilized by Seller or any of its Affiliates in identifying or selecting the proposed Purchased Assets for sale to Buyer. Each proposed Purchased Asset was underwritten in accordance with and satisfies applicable standards established by Seller, Guarantor or any Affiliate of Seller or Guarantor. None of the Whole Loan Documents or the Senior Interest Documents has any marks or notations indicating that it has been sold, assigned, pledged,

 

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encumbered or otherwise conveyed to any Person other than to Seller and then to Buyer. If any Whole Loan Document or Senior Interest Document requires the holder or transferee of the related Purchased Asset to be a qualified transferee, qualified institutional lender or qualified lender (however defined), Seller meets such requirement. Assuming that Buyer also meets such requirement, the sale and pledge of such Purchased Asset to Buyer pursuant to the Repurchase Documents do not violate such Whole Loan Document or Senior Interest Document. Seller (a) has sold and transferred all Servicing Rights with respect to the Purchased Assets to Buyer, and (b) has no Retained Interests except as may be provided in the Repurchase Documents. Except with respect to the Walton Houston Galleria Loan, each bank account maintained in connection with each Original Purchased Asset is in the name of Sub-Servicer and each bank account pertaining to the Walton Houston Galleria Loan has been collaterally assigned by Seller to Buyer.

Section 7.11 Transfer and Security Interest . The Repurchase Documents constitute a valid and effective transfer to Buyer of all right, title and interest (other than Retained Interests) of Seller in, to and under all Purchased Assets (together with all related Servicing Rights), free and clear of any Liens (other than Permitted Liens). With respect to the security interest granted by Seller in Section 11.01 , upon the delivery of the Confirmations, the Whole Loan Documents and the Senior Interest Documents to Custodian, the execution and delivery of the Controlled Account Agreement and the filing of the UCC financing statements as provided herein, such security interest shall be a valid first priority perfected security interest to the extent such security interest can be perfected by possession, filing or control under the UCC, subject only to Permitted Liens. Upon receipt by Custodian of each Whole Loan Document and Senior Interest Document required to be endorsed in blank by Seller and payment by Buyer of the Purchase Price for the related Purchased Asset, Buyer shall either (a) own such Purchased Asset and the related Whole Loan Documents and Senior Interest Documents or (b) have a valid first priority perfected security interest in such Purchased Asset and the related Whole Loan Documents and Senior Interest Document. The Purchased Assets constitute the following, as defined in the UCC: a general intangible, instrument, investment property, security, deposit account, financial asset, uncertificated security, securities account or security entitlement. Seller has not sold, assigned, pledged, encumbered or otherwise conveyed any of the Purchased Assets to any Person other than pursuant to the Repurchase Documents. At Buyer’s election, Buyer may at any time complete and record any or all of the Blank Assignment Documents executed in connection with all Whole Loan Documents and Senior Interest Documents as further evidence of Buyer’s ownership interest in the related Purchased Assets. Seller has not authorized the filing of and is not aware of any UCC financing statements filed against Seller as debtor.

Section 7.12 No Broker . Neither Seller nor any Affiliate of Seller has dealt with any broker, investment banker, agent or other Person, except for Buyer or an Affiliate of Buyer, who may be entitled to any commission or compensation in connection with any Transaction.

Section 7.13 Interest Rate Protection Agreements . (a) Seller has entered into all Interest Rate Protection Agreements required under Section 8.11 , (b) each such Interest Rate Protection Agreement is in full force and effect, (c) no termination event, default or event of default (however defined) exists thereunder, and (d) Seller has effectively assigned to Buyer all Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement.

 

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Section 7.14 Separateness . Seller and Pledgor are each in compliance with the requirements of Article 9 of this Agreement.

Section 7.15 REIT Status . Parent has not engaged in any material “prohibited transactions” as defined in Section 857(b)(6)(B)(iii) and (C) of the Code. Parent for its current “tax year” (as defined in the Code) is a REIT and is entitled to a dividends paid deduction under the requirements of Section 857 of the Code with respect to dividends paid by it with respect to each such year for which it claims a deduction in its Form 1120-REIT filed with the United States Internal Revenue Service for such year.

Section 7.16 REIT Asset and Income Tests . (a) At the close of each taxable year, at least 75% of Parent’s gross income (excluding income described in Section 856(c)(5)(G) of the Code) consists of (i) “rents from real property” within the meaning of Section 856(c)(3)(A) of the Code, (ii) interest on obligations secured by mortgages on real property or on interests in real property, within the meaning of Section 856(c)(3)(B) of the Code, (iii) gain from the sale or other disposition of real property (including interests in real property and interests in mortgages on real property) which is not property described in Section 1221(a)(1) of the Code, within the meaning of Section 856(c)(3)(C) of the Code, (iv) dividends or other distributions on, and gain (other than gain from “prohibited transactions” within the meaning of Section 857(b)(6)(B)(iii) of the Code) from the sale or other disposition of, transferable shares (or transferable certificates of beneficial interest) in other qualifying REITs within the meaning of Section 856(d)(3)(D) of the Code, and (v) amounts described in Sections 856(c)(3)(E) through 856(c)(3)(I) of the Code;

(b) At the close of each taxable year, at least 95% of Parent’s gross income (excluding income described in Section 856(c)(5)(G) of the Code) consists of (i) the items of income described in paragraph (a) above (other than those described in Section 856(c)(3)(I) of the Code), (ii) gain realized from the sale or other disposition of stock or securities which are not property described in Section 1221(a)(1) of the Code, (iii) interest, and (iv) dividends, in each case within the meaning of Section 856(c)(2) of the Code;

(c) At the close of each quarter of Parent’s taxable years, at least 75% of the value of Parent’s total assets (as determined in accordance with Treasury Regulations Section 1.856-2(d)) has consisted of and will consist of real estate assets within the meaning of Sections 856(c)(4) and 856(c)(5)(B) of the Code, cash and cash items (including receivables which arise in the ordinary course of Parent’s operations, but not including receivables purchased from another person), and Cash Equivalents; unless (i) the test described in this paragraph (c) has been satisfied as of the end of the immediately preceding quarter of Parent’s taxable year, (ii) such test is not satisfied as the result of the acquisition of a security or property during the current quarter of Parent’s taxable year, (iii) within 10 days of the end of the current quarter of Parent’s taxable year Parent delivers a written notice to Buyer that such test is not satisfied, (iv) such test is satisfied within the 30 day period as provided under Section 856(c)(4) of the Code, and (v) a Responsible Officer of Parent certifies as to such satisfaction within such 30 day period, and provides documentation, reasonably satisfactory to Buyer evidencing such satisfaction;

(d) At the close of each quarter of each of Parent’s taxable years, (i) not more than 25% of Parent’s total asset value will be represented by securities (other than those

 

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described in paragraph (c) above), (ii) not more than 25% of Parent’s total asset value will be represented by securities of one or more taxable Parent subsidiaries, and (iii) (x) not more than 5% of the value of Parent’s total assets will be represented by securities of any one issuer (other than Cash Equivalents and securities of taxable REIT subsidiaries and securities of a qualified REIT subsidiary within the meaning of Section 856(i) of the Code), and (y) Parent will not hold securities possessing more than 10% of the total voting power or value of the outstanding securities of any one issuer (other than Cash Equivalents, securities of taxable REIT subsidiaries, and securities of a qualified REIT subsidiary within the meaning of Section 856(i) of the Code); unless (A) the tests described in this paragraph (d) have been satisfied as of the end of the immediately preceding quarter of Parent’s taxable year, (B) any of the tests described in this paragraph (d) are not satisfied as the result of the acquisition of a security or property during the current quarter of Parent’s taxable year, (C) within 10 days of the end of the current quarter of Parent’s taxable year Parent delivers written notice to Buyer that such test is not satisfied, (D) such test is satisfied within the 30 day period as provided under Section 856(c)(4) of the Code, and (E) a Responsible Officer of Parent certifies as to such satisfaction within such 30 day period, and provides documentation, reasonably satisfactory to Buyer evidencing such satisfaction; and

(e) Notwithstanding paragraphs (a)-(d) above, if (i) one of the tests described in paragraphs (a)-(d) is failed, but such failure was based upon reasonable reliance on an opinion of nationally recognized tax counsel to the effect that the acquisition of the income security or property or action or omission that gave rise to the failure “would not” or “should not” have caused such failure, which opinion was received prior to such acquisition, action or omission, and (ii) Parent delivers to Buyer within 30 days after one of the tests described in paragraphs (a)-(d) is failed or is asserted to be failed an opinion of counsel to the effect that Parent will qualify for relief under Sections 856(c)(6) or 856(c)(7)(B) of the Code, as applicable, then the tests described in paragraphs (a)-(d) shall not be treated as failed by reason of such failure if the Internal Revenue Service determines that Parent qualifies for relief under Sections 856(c)(6) or 856(c)(7)(B) of the Code, and such tests shall not be treated as failed until the Internal Revenue Service determines that Parent fails to qualify for relief under Sections 856(c)(6) or 856(c)(7)(B) of the Code, in which case Parent shall deliver notice of such event to Buyer as soon as practicable.

Section 7.17 Investment Company Act . None of Seller, Guarantor or any Relevant Affiliate is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the 40 Act.

Section 7.18 Management Internalization . On the Closing Date, Dividend Capital Total Advisors LLC provides advisory services to Guarantor and its Affiliates pursuant to the Seventh Amended and Restated Advisory Agreement dated as of August 5, 2009.

ARTICLE 8

COVENANTS OF SELLER

From the date hereof until the Repurchase Obligations are paid in full and the Repurchase Documents are terminated, Seller shall perform and observe the following

 

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covenants, which shall (a) be given independent effect (so that if a particular action or condition is prohibited by any covenant, the fact that it would be permitted by an exception to or be otherwise within the limitations of another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists), and (b) shall also apply to all subsidiaries of Seller:

Section 8.01 Existence; Governing Documents; Conduct of Business . Seller shall (a) preserve and maintain its legal existence, (b) qualify and remain qualified in good standing in each jurisdiction where the failure to be so qualified would have a Material Adverse Effect, (c) comply with its Governing Documents, including all special purpose entity provisions, and (d) not modify, amend or terminate its Governing Documents without, in each case, receiving approval therefor from Buyer. Seller shall (a) continue to engage in the same (and no other) general lines of business as presently conducted by it, (b) maintain and preserve all of its material rights, privileges, licenses and franchises necessary for the operation of its business, and (c) maintain Seller’s status as a qualified transferee, qualified institutional lender or qualified lender (however defined) under the Whole Loan Documents and the Senior Interest Documents. Seller shall not (a) change its name, organizational number, tax identification number, fiscal year, method of accounting, identity, structure or jurisdiction of organization (or have more than one such jurisdiction), move the location of its principal place of business and chief executive office, as defined in the UCC) from the location referred to in Section 7.01 , or (b) move, or consent to Custodian moving, the Whole Loan Documents and the Senior Interest Documents from the location thereof on the Closing Date, unless in each case Seller has given at least thirty (30) days prior notice to Buyer and has taken all actions required under the UCC to continue the first priority perfected security interest of Buyer in the Purchased Assets. Seller shall enter into each Transaction as principal, unless Buyer in its discretion agrees before a Transaction that Seller may enter into such Transaction as agent for a principal and under terms and conditions disclosed to Buyer.

Section 8.02 Compliance with Laws, Contractual Obligations and Repurchase Documents . Seller shall comply in all material respects with all Requirements of Laws, including those relating to any Purchased Asset and to the reporting and payment of taxes except for where the failure to so comply would not have a Material Adverse Effect. No part of the proceeds of any Transaction shall be used for any purpose that violates Regulation T, U or X of the Board of Governors of the Federal Reserve System. Seller shall conduct the requisite due diligence in connection with the origination or acquisition of each Asset for purposes of complying with the Anti-Terrorism Laws, including with respect to the legitimacy of the applicable Underlying Obligor and the origin of the assets used by such Person to purchase the Underlying Mortgaged Property, and will maintain sufficient information to identify such Person for purposes of the Anti-Terrorism Laws. Seller shall maintain the Custodial Agreement and each Controlled Account Agreement in full force and effect. Seller shall not directly or indirectly enter into any agreement that would be violated or breached by any Transaction or the performance by Seller of any Repurchase Document.

Section 8.03 Structural Changes . Seller shall not enter into merger or consolidation, or liquidate, wind up or dissolve, or sell all or substantially all of its assets or properties (other than to Buyer in connection with Transactions), or permit any changes in the ownership of its Equity Interests that will result in a Change of Control, without the consent of

 

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Buyer, such consent not to be unreasonably withheld. Seller shall ensure that neither the Equity Interests of Seller nor any property or assets of Seller shall be pledged to any Person other than Buyer. Seller shall not enter into any transaction with an Affiliate of Seller (other than the execution of the Servicing and Sub-Servicing Agreement and the purchase by Seller of any Purchased Asset in connection with the sale thereof by Seller to Buyer as contemplated by this Agreement) unless (a) Seller notifies Buyer of such transaction at least ten (10) days before entering into it, and (b) such transaction is on market and arm’s-length terms and conditions, as demonstrated in Seller’s notice.

Section 8.04 Protection of Buyer’s Interest in Purchased Assets . With respect to each Purchased Asset, Seller shall take all action necessary or required by the Repurchase Documents, Whole Loan Documents, Senior Interest Documents or Requirements of Law, or as deemed necessary or desirable by Buyer, to perfect, protect and more fully evidence Buyer’s ownership of and first priority perfected security interest in such Purchased Asset and related Whole Loan Documents and Senior Interest Documents, including executing or causing to be executed such other instruments or notices as may be necessary or appropriate and filing and maintaining effective UCC financing statements, continuation statements and assignments and amendments thereto. Seller shall comply with all requirements of the Custodial Agreement with respect to each Purchased Asset, including the delivery to Custodian of all required Whole Loan Documents and Senior Interest Documents. Seller shall (a) not assign, sell, transfer, pledge, hypothecate, grant, create, incur, assume or suffer or permit to exist any security interest in or Lien (other than Permitted Liens) on any Purchased Asset to or in favor of any Person other than Buyer, (b) except as provided in the preceding clause (a), not grant, allow or enter into any agreement or arrangement with any Person that prohibits or restricts or purports to prohibit or restrict the granting of any Lien on any of the foregoing, (c) defend such Purchased Asset against, and take such action as is necessary to remove, any such Lien, and (d) defend the right, title and interest of Buyer in and to all Purchased Assets against the claims and demands of all Persons whomsoever. Notwithstanding the foregoing, if Seller grants a Lien (other than a Permitted Lien) on any Purchased Asset in violation of this Section 8.04 or any other Repurchase Document, Seller shall be deemed to have simultaneously granted an equal and ratable Lien on such Purchased Asset in favor of Buyer to the extent such Lien has not already been granted to Buyer; provided, that such equal and ratable Lien shall not cure any resulting Event of Default. Seller shall not, or permit Servicer or Sub-Servicer to, extend, amend, waive, terminate, rescind, cancel, release or otherwise modify the material terms of or any collateral, guaranty or indemnity for, or exercise any material right or remedy of a holder (including all lending, corporate and voting rights, remedies, consents, approvals and waivers) of, any Purchased Asset, Senior Interest Document or Whole Loan Document. Seller shall mark its computer records and tapes to evidence the interests granted to Buyer hereunder. Seller shall not take any action to cause any Purchased Asset that is not evidenced by an instrument or chattel paper (as defined in the UCC) to be so evidenced. If a Purchased Asset becomes evidenced by an instrument or chattel paper, the same shall be promptly delivered to Custodian on behalf of Buyer, together with endorsements required by Buyer in its discretion.

Section 8.05 Actions of Seller Relating to Distributions, Indebtedness, Guarantee Obligations, Contractual Obligations, Investments and Liens . So long as a Default or Event of Default has occurred and is continuing, Seller shall not declare or make any payment on account of, or set apart assets for, a sinking or similar fund for the purchase, redemption,

 

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defeasance, retirement or other acquisition of any Equity Interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller. Seller shall not contract, create, incur, assume or permit to exist any Indebtedness, Guarantee Obligations, Contractual Obligations or Investments, except to the extent (a) arising or existing under the Repurchase Documents, (b) existing as of the Closing Date, as referenced in the financial statements delivered to Buyer prior to the Closing Date, and any renewals, refinancings or extensions thereof in a principal amount not exceeding that outstanding as of the date of such renewal, refinancing or extension, (c) incurred after the Closing Date to originate or acquire Assets or to provide funding with respect to Assets, and (d) related to Interest Rate Protection Agreements pursuant to Section 8.11 or entered into in order to manage risks related to Assets. Seller shall not (a) contract, create, incur, assume or permit to exist any Lien on or with respect to any of its property or assets (including the Purchased Assets) of any kind (whether real or personal, tangible or intangible), whether now owned or hereafter acquired, except for Permitted Liens, or (b) except as provided in the preceding clause (a), grant, allow or enter into any agreement or arrangement with any Person that prohibits or restricts or purports to prohibit or restrict the granting of any Lien on any of the foregoing.

Section 8.06 Maintenance of Property, Insurance and Records . Seller shall (a) keep all property useful and necessary in its business in good working order and condition, (b) maintain insurance on all its properties in accordance with customary and prudent practices of companies engaged in the same or a similar business, and (c) furnish to Buyer upon request information and certificates with respect to such insurance. Seller shall maintain and implement administrative and operating procedures (including the ability to recreate records evidencing the Purchased Assets if the original records are destroyed) and shall keep and maintain all documents, books, records and other information (including with respect to the Purchased Assets) that are reasonably necessary or advisable in the conduct of its business.

Section 8.07 Financial Covenants .

(a) Seller shall comply at all times with the Debt Yield Test, with such compliance to be tested quarterly as of the end of each Test Period.

(b) Seller shall comply at all times with the LTV/LTC Test, with such compliance to be tested quarterly as of the end of each Test Period.

Section 8.08 Delivery of Income . Seller shall, and pursuant to Irrevocable Redirection Notices shall cause the Underlying Obligors under the Purchased Assets and all other applicable Persons to, deposit all Income in respect of the Purchased Assets into the Servicing Agreement Account in accordance with Section 5.01 hereof on the day the related payments are due except, with respect to Income payable in connection with the Original Purchased Assets, all Income shall be transferred to the Servicing Agreement Account in accordance with the requirements of the Servicing Agreement. Seller, Servicer and Sub-Servicer (a) shall comply with and enforce each Irrevocable Redirection Notice, (b) shall not amend, modify, waive, terminate or revoke any Irrevocable Redirection Notice without Buyer’s consent in its discretion, and (c) shall take all reasonable steps to enforce each Irrevocable Redirection Notice. In connection with each principal payment or prepayment under a Purchased Asset,

 

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Seller shall provide or cause to be provided to Buyer and Custodian sufficient detail to enable Buyer and Custodian to identify the Purchased Asset to which such payment applies. If Seller receives any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any Purchased Assets, or otherwise in respect thereof, Seller shall accept the same as Buyer’s agent, hold the same in trust for Buyer and promptly deliver the same to Buyer or its designee in the exact form received, together with duly executed instruments of transfer, stock powers or assignment in blank and such other documentation as Buyer shall reasonably request. If any Income is received by Seller, Guarantor or any Affiliate of Seller or Guarantor, Seller shall pay or deliver, or cause to be paid or delivered, such Income to Buyer or Custodian on behalf of Buyer within three (3) Business Days after receipt, and, until so paid or delivered, hold such Income in trust for Buyer, segregated from other funds of Seller.

Section 8.09 Delivery of Financial Statements and Other Information . Seller shall deliver the following to Buyer, as soon as available and in any event within the time periods specified:

(a) within forty-five (45) days after the end of each fiscal quarter of Parent (other than its 4 th fiscal quarter) (i) the unaudited balance sheets of Parent as at the end of such period, (ii) the related unaudited statements of income, retained earnings and cash flows for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, and (iii) a Compliance Certificate;

(b) within ninety (90) days after the end of each fiscal year of Parent, (i) the audited balance sheets of Parent as at the end of such fiscal year, (ii) the related statements of income, retained earnings and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, (iii) an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Parent as at the end of and for such fiscal year in accordance with GAAP and (iv) a Compliance Certificate;

(c) [reserved];

(d) with respect to each Purchased Asset and related Underlying Mortgaged Property serviced by Seller or an Affiliate of Seller: (i) within thirty (30) days after the end of each fiscal quarter of Seller, a quarterly report of the following: delinquency, loss experience, internal risk rating, surveillance, rent roll, occupancy and other property-level information, and (ii) within ten (10) days after receipt or preparation thereof by Seller or Sub-Servicer, remittance, servicing, securitization, exception and other reports, operating and financial statements of Underlying Obligors, and modifications or updates to the items contained in the Underwriting Materials;

(e) [reserved];

(f) Within forty-five (45) days after the close of each quarter of Parent’s taxable years, a Responsible Officer of Parent will certify as to the accuracy of the representations made in Section 7.16 , substantively in the form attached as Exhibit O hereto.

 

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(g) any other material agreements, correspondence, documents or other information not included in an Underwriting Package related to Seller or the Purchased Assets, as soon as possible after the discovery thereof by Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing;

(h) within fifteen (15) days after the end of each month, a properly completed Purchased Asset Data Summary, substantially in the form attached as Exhibit G , with respect to each Purchased Asset; and

(i) such other information regarding the financial condition, operations or business of Seller, Guarantor or any Underlying Obligor as Buyer may reasonably request including, without limitation, any such information which is otherwise necessary to allow Buyer to monitor compliance with the terms of the Repurchase Documents and which may from time to time include the projections of Parent of the operating budget and cash flow budget of Parent for the following fiscal year.

Section 8.10 Delivery of Notices . Seller shall promptly notify Buyer of the occurrence of any of the following of which Seller has Knowledge, together with a certificate of a Responsible Officer of Seller setting forth details of such occurrence and any action Seller has taken or proposes to take with respect thereto:

(a) a Representation Breach;

(b) any of the following: (i) with respect to any Purchased Asset or related Underlying Mortgaged Property: material change in Market Value, material loss or damage, material licensing or permit issues, violation of Requirements of Law, discharge of or damage from Materials of Environmental Concern or any other actual or expected event or change in circumstances, in each case, that could reasonably be expected to result in a default or material decline in value or cash flow, and (ii) with respect to Seller: violation of Requirements of Law, material decline in the value of Seller’s assets or properties, an Internal Control Event or other event or circumstance that could reasonably be expected to have a Material Adverse Effect;

(c) the existence of any Default, Event of Default or material default under or related to a Purchased Asset, Whole Loan Document, Senior Interest Document, Indebtedness, Guarantee Obligation or Contractual Obligation of Seller;

(d) the resignation or termination of Sub-Servicer under the Servicing and Sub-Servicing Agreement;

(e) the establishment of a rating by any Rating Agency applicable to Seller or Guarantor and any downgrade in or withdrawal of such rating once established;

(f) the commencement of, settlement of or material judgment in any litigation, action, suit, arbitration, investigation or other legal or arbitrable proceedings before any Governmental Authority that (i) adversely affects Seller, any Purchased Asset or Underlying Mortgaged Property, or materially and adversely affects Guarantor, (ii) questions or challenges the validity or enforceability of any Repurchase Document, Transaction, Purchased Asset, Whole Loan Document or Senior Interest Document, or (iii) individually or in the aggregate, if adversely determined, could reasonably be likely to have a Material Adverse Effect; and

 

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(g) promptly upon Knowledge thereof, notice of any change in Parent’s status as a REIT.

Section 8.11 Hedging . The terms and provisions governing hedging under this Section 8.11 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

Section 8.12 [reserved] .

Section 8.13 Guarantee Agreement . If at any time (a) the obligations of any Guarantor under the Guarantee Agreement shall cease to be in effect other than in accordance with the terms of the Guarantee Agreement, (b) any Insolvency Event has occurred with respect to any Guarantor, or (c) any violation of any provision set forth in Section 9 of the Guarantee Agreement then applicable to Guarantor that has not been cured within any applicable cure period (any of the foregoing events, a “ Guarantee Default ”), then, within five (5) days after the occurrence of any such Guarantee Default, Seller shall cause a replacement guarantor acceptable to Buyer in its discretion assume in writing all obligations of Guarantor under the Guarantee Agreement or become a Guarantor, as Buyer deems necessary in its discretion to correct such Guarantee Default.

Section 8.14 Management Internalization . The terms and conditions governing management internalization under this Section 8.14 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

Section 8.15 REIT Status . Parent shall (i) at all times continue to be (A) qualified as a REIT as defined in Section 856 of the Code and (B) entitled to a dividends paid deduction under Section 857 of the Code with respect to dividends paid by it in an amount sufficient to satisfy the requirements of Section 857(a) of the Code with respect to each taxable year for which it claims a deduction on its Form 1120 REIT filed with the United States Internal Revenue Service for such year, or the entering into by it of any material “prohibited transactions” as defined in Sections 857(b) and 856(c) of the Code and (ii) shall not enter into “prohibited transactions” as defined in Sections 857(b)(6)(B)(iii) of the Code (taking into account Sections 857(b)(6)(C), 857(b)(6)(D) and 857(b)(6)(E) of the Code) which subjects it to tax under Section 857(b)(6)(A) in a material amount. Seller will remain a disregarded entity for U.S. federal income tax purposes. OP will remain a partnership for U.S. federal income tax purposes, of which Parent is the general partner.

Section 8.16 Post-Closing Obligations Regarding Accounts . As soon as practicable, and in no event later than thirty (30) days from the Closing Date (a) for all the escrow accounts maintained in the name of Sub-Servicer in connection with the Original Purchased Assets, Seller shall deliver to Buyer an Account Control Agreement between Sub-Servicer as debtor, Buyer as secured party, and the existing account bank and (b) deliver fully executed Irrevocable Redirection Notices acknowledged by each Underlying Obligor with respect to each Original Purchased Asset, each in form and substance reasonably acceptable to Buyer in its sole discretion.

 

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ARTICLE 9

SINGLE-PURPOSE ENTITY

Section 9.01 Covenants Applicable to Seller . Seller shall (a) own no assets, and shall not engage in any business, other than the assets necessary to operate its business as contemplated by this Agreement and Section 7 of its Limited Liability Company Agreement and transactions specifically contemplated by this Agreement and any other Repurchase Document and any business that is incidental, necessary and appropriate to accomplish the foregoing, (b) not incur any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (i) with respect to the Whole Loan Documents, Senior Interest Documents and the Retained Interests, (ii) commitments to make loans that may become Eligible Assets, and (iii) as otherwise permitted under this Agreement, (c) not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates, in each case other than in connection with the origination or acquisition of Assets for purchase under the Repurchase Documents, (d) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, (e) comply with the provisions of its Governing Documents, (f) do all things necessary to observe organizational formalities and to preserve its existence, and shall not amend, modify, waive provisions of or otherwise change its Governing Documents, (g) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such financial statements to indicate the separateness of Seller from such Affiliate and to indicate that the Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on the Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law), (h) be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other, (i) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and shall remain Solvent; provided , however , that the foregoing shall not require any Affiliate of Seller to make any additional capital contributions to Seller, (j) not engage in or suffer any Change of Control, dissolution, winding up, liquidation, consolidation or merger in whole or in part or convey or transfer all or substantially all of its properties and assets to any Person (except as contemplated in Section 8.03 of this Agreement), (k) not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others, (l) maintain its properties, assets and accounts separate from those of any Affiliate or any other Person, (m) not hold itself out to be responsible for the debts or obligations of any other Person, (n) not take any Insolvency Action, (o) not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction, (p) maintain a sufficient number of employees, if any, in light of contemplated business operations, (q) use separate stationary, invoices and checks bearing its own name, to the extent

 

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that its business uses such items, (r) allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate, (s) not pledge its assets to secure the obligations of any other Person, and (t) not form, acquire or hold any Subsidiary or own any Equity Interest in any other entity.

Section 9.02 Covenants Applicable to Pledgor . Pledgor shall, and Seller shall ensure that Pledgor shall, (a) own no assets other than its Equity Interests in Seller and such individual assets as are necessary to operate its business as contemplated by this Agreement and Section 7 of its Limited Liability Company Agreement, and shall not engage in any business other than acting as the sole member of Seller that is a limited liability company and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, (b) not incur any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), (c) not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates, other than with respect to the Equity Interests in Seller, (d) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, (e) comply with the provisions of its Governing Documents, (f) do all things necessary to observe organizational formalities and to preserve its existence, and shall not amend, modify, waive provisions of or otherwise change its Governing Documents, (g) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided , that (i) appropriate notation shall be made on such financial statements to indicate the separateness of Pledgor from such Affiliate and to indicate that Pledgor’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Pledgor’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law), (h) be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other, (i) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and shall remain Solvent, provided , however , that the foregoing shall not require any Affiliate of Pledgor to make any additional capital contributions to Pledgor, (j) not engage in or suffer any change of Control, dissolution, winding up, liquidation, consolidation or merger in whole or in part or convey or transfer all or substantially all of its properties and assets to any Person (except as contemplated in Section 8.03 of this Agreement), (k) not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others, (l) maintain its properties, assets and accounts separate from those of any Affiliate or any other Person, (m) not hold itself out to be responsible for the debts or obligations of any other Person, (n) not, without the prior unanimous written consent of its Independent Director or Independent Manager, take any Insolvency Action with respect to itself or Seller, (o) (i) have at all times at least one Independent Director (or such greater number as required by Buyer or any Rating Agency) and (ii) provide Buyer with up-to-date contact information for each such Independent Director or Independent Manager and a copy of the agreement pursuant to which such Independent Director consents to and as an

 

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“Independent Director” or “Independent Manager” for Pledgor, (p) have the Governing Documents for Pledgor provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director or Independent Manager, together with the name and contact information of the replacement Independent Director or Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Director or Independent Manager, (ii) that, to the fullest extent permitted by law, and notwithstanding any duty otherwise existing at law or in equity, any Independent Director or Independent Manager shall consider only the interests of each of Pledgor or Seller, including its respective creditors, in acting or otherwise voting on the Insolvency Action (depending on which company is subject to the Insolvency Action) and (iii) except for duties to Pledgor and Seller as set forth in the immediately preceding clause (ii) and the duties of the Independent Director or Independent Manager to the holders of the Equity Interests in Pledgor or Seller, and Pledgor’s or Seller’s respective creditors, solely to the extent of their respective economic interests in Pledgor or Seller, as applicable), but excluding (A) all other interests of the holders of the Equity Interests in Pledgor or Seller, (B) the interests of other Affiliates of Pledgor or Seller, and (C) the interests of any group of Affiliates of which Pledgor or Seller is a part, the Independent Director or Independent Manager shall not have any fiduciary duties to the holders of the Equity Interests in Pledgor or Seller, any officer or any other Person bound by the Governing Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing, (q) not enter into any transaction with an Affiliate of Pledgor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction, (r) maintain a sufficient number of employees, if any, in light of contemplated business operations, (s) use separate stationary, invoices and checks bearing its own name, to the extent that its business uses such items, and (t) allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate, (u) not pledge its assets to secure the obligations of any other Person, and (v) not form, acquire or hold any Subsidiary or own any Equity Interest in any other entity, except for its Equity Interest in Seller.

Section 9.03 Covenants Applicable to Seller and Pledgor . Seller and Pledgor shall, and Seller shall ensure that Pledgor shall (i) each shall be a Delaware limited liability company, (ii) each shall have at least one Independent Director or Independent Manager serving as manager of such company, provided , however , that so long as Pledgor has an Independent Director of Independent Manager, Seller shall not be required to maintain an Independent Director or Independent Manager and still shall be deemed to have complied with this clause (ii), (iii) shall not take any Insolvency Action and shall not cause or permit the members or managers of such entity to take any Insolvency Action, either with respect to itself or, if the company is a Pledgor, with respect to Seller, in each case unless its Independent Director or Independent Manager then serving director or as manager of the company shall have consented in writing to such action, and (iv) shall have either (A) a springing member which owns no economic interest in the company, has signed the company’s limited liability company agreement and has no obligation to make capital contributions to the company, or (B) two natural persons or one entity that is not a member of the company, that has signed its limited liability company agreement and that, under the terms of such limited liability company agreement becomes a member of the company immediately prior to the resignation or dissolution of the last remaining member of the company.

 

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ARTICLE 10

EVENTS OF DEFAULT AND REMEDIES

Section 10.01 Events of Default . Each of the following events shall be an “ Event of Default ”:

(a) Seller fails to make a payment of (i) Repurchase Price (other than Price Differential) when due, whether by acceleration or otherwise, (ii) Price Differential when due, or (iii) any other amount (including all unpaid Margin Deficits) when due, in each case under the Repurchase Documents;

(b) Seller fails to observe or perform in any material respect any other Repurchase Obligation of Seller under the Repurchase Documents (including any covenant contained in the Repurchase Documents) or the Whole Loan Documents or Senior Interest Documents to which Seller is a party, and (except in the case of a failure to perform or observe the Repurchase Obligations of Seller under Section 8.04 and 18.08(a) ) such failure continues unremedied for ten (10) days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by Seller;

(c) any Representation Breach exists and continues unremedied for ten (10) days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by Seller;

(d) Seller or Guarantor defaults beyond any applicable grace period in paying any amount or performing any obligation under any Indebtedness, Guarantee Obligation or Contractual Obligation with an outstanding amount of at least $25,000 with respect to Seller, or $25,000,000 with respect to Guarantor, and the effect of such default is to permit the acceleration thereof (regardless of whether such default is waived or such acceleration occurs), but, with respect to Guarantor, only at any time that the Guarantee Amount exceeds zero;

(e) [reserved];

(f) an Insolvency Event occurs with respect to Seller, Guarantor or any Relevant Affiliate;

(g) a Change of Control occurs with respect to Seller, Guarantor or any Relevant Affiliate;

(h) a final judgment or judgments for the payment of money in excess of $25,000 with respect to Seller, or $25,000,000 with respect to Guarantor (in the event the Guaranty Amount then-currently exceeds zero, even if it has previously been reduced to zero), in the aggregate that is not insured against is entered against Seller or Guarantor by one or more Governmental Authorities and the same is not satisfied, discharged (or provision has not been made for such discharge) or bonded, or a stay of execution thereof has not been procured, within thirty (30) days from the date of entry thereof;

 

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(i) a Governmental Authority takes any action to (i) condemn, seize or appropriate, or assume custody or control of, all or any substantial part of the property of Seller, (ii) displace the management of Seller or curtail its authority in the conduct of the business of Seller, (iii) terminate the activities of Seller as contemplated by the Repurchase Documents, or (iv) remove, limit or restrict the approval of Seller of the foregoing as an issuer, buyer or a seller of securities;

(j) Seller admits that it is not Solvent or is not able or not willing to perform any of its Repurchase Obligations or Guarantor admits that it is not Solvent or, is not able or willing to perform any of its Guarantee Obligations;

(k) any material provision of the Repurchase Documents, any right or remedy of Buyer or obligation, covenant, agreement or duty of Seller thereunder, or any Lien, security interest or control granted under or in connection with the Repurchase Documents or Purchased Assets terminates, is declared null and void, ceases to be valid and effective, ceases to be the legal, valid, binding and enforceable obligation of Seller or any other Person, or the validity, effectiveness, binding nature or enforceability thereof is contested, challenged, denied or repudiated by Seller or any other Person, in each case directly, indirectly, in whole or in part;

(l) Buyer ceases for any reason to have a valid and perfected first priority security interest in any Purchased Asset;

(m) Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing is required to register as an “investment company” (as defined in the 40 Act) or the arrangements contemplated by the Repurchase Documents shall require registration of Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing as an “investment company”;

(n) Seller engages in any conduct or action relating in any way to any Purchased Asset where Buyer’s prior consent is expressly required by any provision of any Repurchase Document and Seller fails to obtain such consent;

(o) Sub-Servicer, Underlying Obligor, Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing or other Person fails to deposit to the Servicing Agreement Account or the Waterfall Account all Income and other amounts as required by Section 5.01 and other provisions of this Agreement within three (3) Business Days of when due;

(p) Guarantor’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein are qualified or limited by reference to the status of Guarantor as a “going concern” or a reference of similar import, other than a qualification or limitation expressly related to Buyer’s rights in the Purchased Assets;

(q) Parent fails (i) to qualify as a REIT (without giving any effect to any cure or corrective periods or allowances), or (ii) to continue to be entitled to a dividend paid deduction under Section 857 of the Code with respect to dividends paid by it with respect to each taxable year for which it claims a deduction on its Form 1120- REIT filed with the United States Internal Revenue Service for such year, or the entering into by Parent of “prohibited transactions” as defined in Sections 857(b)(6)(B)(iii) of the Code (taking into account Sections 857(b)(6)(C), 857(b)(6)(D) and 857(b)(6)(E) of the Code) or (iii) to satisfy any of the income or asset tests required to be satisfied by a REIT as set forth in Section 7.16 ;

 

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(r) OP fails to be a partnership for U.S. federal income tax purposes for which Parent is the general partner, or Seller fails to be a disregarded entity of OP for U.S. federal income tax purposes;

(s) any Material Modification is made to any Purchased Asset or any Whole Loan Document or Senior Interest Document without the prior written consent of Buyer; or

(t) Guarantor breaches any of the obligations, terms or conditions then applicable to it, as set forth in the Guarantee Agreement and a replacement guarantor has not been designated in accordance with Section 8.13 .

Section 10.02 Remedies of Buyer as Owner of the Purchased Assets . If an Event of Default exists, at the option of Buyer, exercised by notice to Seller (which option shall be deemed to be exercised, even if no notice is given, automatically and immediately upon the occurrence of an Event of Default under Section 10.01(f) , the Repurchase Date for all Purchased Assets shall be deemed automatically and immediately to occur (the date on which such option is exercised or deemed to be exercised, the “ Accelerated Repurchase Date ”). If Buyer exercises or is deemed to have exercised the foregoing option:

(a) All Repurchase Obligations shall become immediately due and payable on and as of the Accelerated Repurchase Date.

(b) All amounts in the Waterfall Account and all Income paid after the Accelerated Repurchase Date shall be retained by Buyer and applied in accordance with Article 5 .

(c) Buyer may complete any assignments, allonges, endorsements, powers or other documents or instruments executed in blank and otherwise obtain physical possession of all Whole Loan Documents, Senior Interest Documents and all other instruments, certificates and documents then held by Custodian under the Custodial Agreement. Buyer may obtain physical possession of all Servicing Files, Servicing Agreements and other files and records of Seller, Servicer or Sub-Servicer. Seller shall deliver to Buyer such assignments and other documents with respect thereto as Buyer shall request.

(d) Buyer may in its discretion immediately, at any time and from time to time, exercise either of the following remedies with respect to any or all of the Purchased Assets: (i) sell such Purchased Assets on a servicing-released basis in a recognized market and by means of a public or private sale at such price or prices as Buyer accepts in its discretion, and apply the net proceeds thereof in accordance with Article 5 , or (ii) retain such Purchased Assets and give Seller credit against the Repurchase Price for such Purchased Assets (or if the amount of such credit exceeds the Repurchase Price for such Purchased Assets, to other Repurchase Obligations due and any other amounts then owing to Buyer by any other Person pursuant to any Repurchase Document, in such order and in such amounts as determined by Buyer in its discretion, with any excess amount being remitted to Seller), in an amount equal to the Market Value of such Purchased Assets. Until such time as Buyer exercises either such remedy with respect to a Purchased Asset, Buyer may hold such Purchased Asset for its own account and retain all Income with respect thereto.

 

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(e) The Parties agree that the Purchased Assets are of such a nature that they may decline rapidly in value, and may not have a ready or liquid market. Accordingly, Buyer shall not be required to sell more than one Purchased Asset on a particular Business Day, to the same purchaser or in the same manner. Buyer may determine in its discretion whether, when and in what manner a Purchased Asset shall be sold, it being agreed that both a good faith public and a good faith private sale shall be deemed to be commercially reasonable. Buyer shall not be required to give notice to Seller or any other Person prior to exercising any remedy in respect of an Event of Default. If no prior notice is given, Buyer shall give notice to Seller of the remedies exercised by Buyer promptly thereafter. Buyer shall act in good faith in exercising its rights and remedies under this Article 10 .

(f) Seller shall be liable to Buyer for (i) any amount by which the Repurchase Obligations due to Buyer exceed the aggregate of the net proceeds and credits referred to in the preceding clause (d), (ii) the amount of all actual out-of-pocket third-party expenses, including reasonable legal fees and expenses, actually incurred by Buyer in connection with or as a consequence of an Event of Default, (iii) any costs and losses payable under Section 12.03 , and (iv) any other actual loss, damage, reasonable cost or expense resulting from the occurrence of an Event of Default.

(g) Buyer shall be entitled to an injunction, an order of specific performance or other equitable relief to compel Seller to fulfill any of its obligations as set forth in the Repurchase Documents, including this Article 10 , if Seller fails or refuses to perform its obligations as set forth herein or therein.

(h) Seller hereby appoints Buyer as attorney-in-fact of Seller for purposes of carrying out the Repurchase Documents, including executing, endorsing and recording any instruments or documents and taking any other actions that Buyer deems necessary or advisable to accomplish such purposes, which appointment is coupled with an interest and is irrevocable.

(i) Buyer may, without prior notice to Seller, exercise any or all of its set-off rights including those set forth in Section 18.17 . This Section 10.02(i) shall be without prejudice and in addition to any right of set-off, combination of accounts, Lien or other rights to which any Party is at any time otherwise entitled.

(j) All rights and remedies of Buyer under the Repurchase Documents, including those set forth in Section 18.17 , are cumulative and not exclusive of any other rights or remedies that Buyer may have and may be exercised at any time when an Event of Default exists. Such rights and remedies may be enforced without prior judicial process or hearing. Seller agrees that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s-length. Seller hereby expressly waives any defenses Seller might have to require Buyer to enforce its rights by judicial process or otherwise arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or any other election of remedies.

 

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ARTICLE 11

SECURITY INTEREST

Section 11.01 Grant . Buyer and Seller intend that all Transactions shall be sales to Buyer of the Purchased Assets and not loans from Buyer to Seller secured by the Purchased Assets. However, to preserve and protect Buyer’s rights with respect to the Purchased Assets and under the Repurchase Documents in the event that any Governmental Authority recharacterizes the Transactions as other than sales, and as security for Seller’s performance of the Repurchase Obligations, Seller hereby grants to Buyer a Lien on and security interest in all of the right, title and interest of Seller in, to and under the Purchased Assets (which for this purpose shall be deemed to include the items described in the proviso in the definition thereof), and the transfers of the Purchased Assets to Buyer shall be deemed to constitute and confirm such grant, to secure the payment and performance of the Repurchase Obligations (including the obligation of Seller to pay the Repurchase Price, or if the Transactions are recharacterized as loans, to repay such loans for the Repurchase Price).

Section 11.02 Effect of Grant . (a) If any circumstance described in Section 11.01 occurs, (a) this Agreement shall also be deemed to be a security agreement as defined in the UCC, (b) Buyer shall have all of the rights and remedies provided to a secured party by Requirements of Law (including the rights and remedies of a secured party under the UCC and the right to set off any mutual debt and claim) and under any other agreement between Buyer and Seller, (c) without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Assets against all of the Repurchase Obligations, without prejudice to Buyer’s right to recover any deficiency, (d) the possession by Buyer or any of its agents, including Custodian, of the Whole Loan Documents, the Senior Interest Documents, the Purchased Assets and such other items of property as constitute instruments, money, negotiable documents, securities or chattel paper shall be deemed to be possession by the secured party for purposes of perfecting such security interest under the UCC and Requirements of Law, and (e) notifications to Persons (other than Buyer) holding such property, and acknowledgments, receipts or confirmations from Persons (other than Buyer) holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the secured party for the purpose of perfecting such security interest under the UCC and Requirements of Law. The security interest of Buyer granted herein shall be, and Seller hereby represents and warrants to Buyer that it is, a first priority perfected security interest. For the avoidance of doubt, (i) each Purchased Asset secures the Repurchase Obligations of Seller with respect to all other Transactions and all other Purchased Assets, including any Purchased Assets that are senior in priority to the Purchased Asset in question, and (B) if an Event of Default exists, no Purchased Asset relating to a Purchased Asset will be released from Buyer’s Lien or transferred to Seller until the Repurchase Obligations are indefeasibly paid in full. Notwithstanding the foregoing, the Repurchase Obligations shall be full recourse to Seller.

Section 11.03 Seller to Remain Liable . Buyer and Seller agree that the grant of a security interest under this Article 11 shall not constitute or result in the creation or assumption by Buyer of any Retained Interest or other obligation of Seller or any other Person in connection with any Purchased Asset, whether or not Buyer exercises any right with respect thereto. Seller

 

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shall remain liable under the Purchased Assets, the Whole Loan Documents and the Senior Interest Documents to perform all of Seller’s duties and obligations thereunder to the same extent as if the Repurchase Documents had not been executed.

Section 11.04 Waiver of Certain Laws . Seller agrees, to the extent permitted by Requirements of Law, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any Purchased Assets may be situated in order to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale of any of the Purchased Assets, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereof, and Seller, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may be lawful so to do, the benefit of all such laws and any and all right to have any of the properties or assets constituting the Purchased Assets marshaled upon any such sale, and agrees that Buyer or any court having jurisdiction to foreclose the security interests granted in this Agreement may sell the Purchased Assets as an entirety or in such parcels as Buyer or such court may determine.

ARTICLE 12

INCREASED COSTS; CAPITAL ADEQUACY

Section 12.01 Market Disruption . If prior to any Pricing Period, Buyer determines that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Period, Buyer shall give prompt notice thereof to Seller, whereupon the Pricing Rate for such Pricing Period, and for all subsequent Pricing Periods until such notice has been withdrawn by Buyer, shall be the Alternative Rate.

Section 12.02 Illegality . If the adoption of or any change in any Requirements of Law or in the interpretation or application thereof after the date hereof shall make it unlawful for Buyer to effect or continue Transactions as contemplated by the Repurchase Documents, (a) any commitment of Buyer hereunder to enter into new Transactions shall be terminated and the Funding Expiration Date shall be deemed to have occurred, (b) if required by such adoption or change, the Pricing Rate shall be converted automatically to the Alternative Rate on the last day of the then current Pricing Period or within such earlier period as may be required by Requirements of Law, and (c) if required by such adoption or change, the Maturity Date shall be deemed to have occurred.

Section 12.03 Breakfunding . Seller shall indemnify Buyer and hold Buyer harmless from any loss, cost or expense (including reasonable legal fees and expenses) that Buyer may sustain or incur arising from (a) the failure by Seller to terminate any Transaction after Seller has given a notice of termination pursuant to Section 3.05 , (b) any payment to Buyer on account of the outstanding Repurchase Price, including a payment made pursuant to Section 3.05 but excluding a payment made pursuant to Section 5.02 , on any day other than a Remittance Date (based on the assumption that Buyer funded its commitment with respect to the Transaction in the London Interbank Eurodollar market and using any reasonable attribution or averaging methods that Buyer deems appropriate and practical), (c) any failure by Seller to sell Eligible Assets to Buyer after Seller and Buyer have executed a Confirmation and Buyer has

 

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agreed to purchase such Eligible Assets in accordance with this Agreement, or (d) any conversion of the Pricing Rate to the Alternative Rate because the LIBO Rate is not available for any reason on a day that is not the last day of the then current Pricing Period.

Section 12.04 Increased Costs . If the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer made after the date of this Agreement (a) shall subject Buyer to any tax of any kind whatsoever with respect to the Repurchase Documents, any Purchased Asset or any Transaction, or change the basis of taxation of payments to Buyer in respect thereof (except for changes in the rate of tax on Buyer’s overall net income imposed by the taxing jurisdiction in which Buyer is organized or of its applicable lending office, unless such taxes are imposed as a result of Buyer having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement), (b) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer, or (c) shall impose on Buyer any other condition; and the result of any of the preceding clauses (a), (b) and (c) is to increase the cost to Buyer, by an amount that Buyer deems to be material, of entering into, continuing or maintaining Transactions, or to reduce any amount receivable under the Repurchase Documents in respect thereof, then, in any such case, Seller shall pay to Buyer such additional amount or amounts as reasonably necessary to fully compensate Buyer for such increased cost or reduced amount receivable.

Section 12.05 Capital Adequacy . If Buyer determines that the adoption of or any change in any Requirements of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation Controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made after the date of this Agreement has or shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer in its discretion to be material, then, in any such case, Seller shall pay to Buyer such additional amount or amounts as reasonably necessary to fully compensate Buyer for such reduction.

Section 12.06 Withholding Taxes .

(a) All payments made by Seller to Buyer or any other Indemnified Person under the Repurchase Documents and by Underlying Obligors with respect to the Purchased Assets shall be made free and clear of and without deduction or withholding for or on account of any taxes. If any taxes are required to be withheld from any amounts payable to Buyer and/or any other Indemnified Person, then the amount payable to such Person will be increased (such increase, the “ Additional Amount ”) such that every net payment made under this Agreement after withholding for or on account of any taxes (including any taxes on such increase) is not less than the amount that would have been paid absent such deduction or withholding. The foregoing obligation to pay Additional Amounts, however, will not apply with respect to net income or

 

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franchise taxes imposed on Buyer and/or any other Indemnified Person, with respect to payments required to be made by Seller under the Repurchase Documents, by a taxing jurisdiction in which Buyer and/or any other Indemnified Person is organized or of its applicable lending office, unless such taxes are imposed as a result of Buyer having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement (in which case, Seller will be required to pay such Additional Amounts). Promptly after Seller pays any taxes referred to in this Section 12.06 , Seller will send Buyer appropriate evidence of such payment.

(b) If a Person acquires any of the rights and obligations of Buyer as an assignee under this Agreement, and such Person is not organized under the laws of the United States, any state thereof or the District of Columbia (a “ Non-U.S. Person ”), such Non-U.S. Person shall deliver to Seller on or before the date on which such Person becomes a party to this Agreement, two duly completed and executed copies of, as applicable, IRS Form W-8BEN or IRS Form W-8ECI or any successor forms thereto designated as such by the IRS. If the Non-U.S. Person is eligible for and wishes to claim exemption from or reduction in U.S. federal withholding tax through benefit of a treaty, such Person shall deliver a Form W-8ECI. If the Non-U.S. Person is eligible for and wishes to claim exemption from U.S. federal withholding tax under Section 871(h) or Section 881(c) of the Code with respect to payments of “portfolio interest,” such Person shall deliver both the Form W-8BEN and a statement certifying that such Person is not a bank, a “10 percent shareholder” or a “controlled foreign corporation” within the meaning of Section 881(c)(3) of the Code. If any previously delivered form or statement becomes inaccurate with respect to the Non-U.S. Person that delivered it, the Non-U.S. Person shall promptly notify Seller of this fact.

Section 12.07 Payment and Survival of Obligations . In connection with Buyer’s request for any payment pursuant to this Article 12 , Buyer shall provide a written notice showing the calculation of any amounts payable pursuant to this Article 12 , and Seller shall pay such amounts to Buyer within ten (10) Business Days after Seller receives such notice. Seller shall not be required to compensate Buyer or any assignees or Participants pursuant to this Article 12 for any loss or expense incurred more than ninety (90) days prior to the date that Buyer notifies Seller of Buyer’s intention to claim compensation therefor. The obligations of Seller under this Article 12 shall apply to assignees and Participants and survive the termination of the Repurchase Documents.

ARTICLE 13

INDEMNITY AND EXPENSES

Section 13.01 Indemnity .

(a) Seller shall release, defend, indemnify and hold harmless Buyer, Affiliates of Buyer and its and their respective officers, directors, shareholders, partners, members, owners, employees, agents, attorneys, Affiliates and advisors (each an “ Indemnified Person ” and collectively the “ Indemnified Persons ”), on a net after-tax basis, from and against any and all liabilities, obligations (other than with respect to net income or franchise taxes imposed on Buyer and/or any other Indemnified Person imposed by the taxing jurisdiction in which Buyer is organized or of its applicable lending office, unless such taxes are imposed as a result of Buyer

 

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having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement), losses, damages, penalties, actions, judgments, suits, taxes (other than net income or franchise taxes imposed on Buyer and/or any other Indemnified Person imposed by the taxing jurisdiction in which Buyer is organized or of its applicable lending office, unless such taxes are imposed as a result of Buyer having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement), fees, third party costs, expenses (including reasonable legal fees and expenses), penalties or fines of any kind that may be imposed on, incurred by or asserted against such Indemnified Person (collectively, the “ Indemnified Amounts ”) in any way relating to, arising out of or resulting from or in connection with (i) the Repurchase Documents, the Whole Loan Documents, the Senior Interest Documents, the Purchased Assets, the Transactions, any Underlying Mortgaged Property or related property, or any action taken or omitted to be taken by any Indemnified Person in connection with or under any of the foregoing, or any transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under or in respect of any Repurchase Document or Transaction, (ii) any claims, actions or damages by an Underlying Obligor or lessee with respect to a Purchased Asset, (iii) any violation or alleged violation of, non–compliance with or liability under any Requirements of Law applicable to Seller, any Repurchase Document or any Purchased Asset, (iv) ownership of, Liens on, security interests in or the exercise of rights or remedies under any of the items referred to in the preceding clause (i), (v) any accident, injury to or death of any person or loss of or damage to property occurring in, on or about any Underlying Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vi) any use, nonuse or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, any Underlying Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vii) any failure by Seller to perform or comply with any Repurchase Document, Whole Loan Document, Senior Interest Document or Purchased Asset, (viii) performance of any labor or services or the furnishing of any materials or other property in respect of any Underlying Mortgaged Property or Purchased Asset, (ix) any claim by brokers, finders or similar Persons claiming to be entitled to a commission in connection with any lease or other transaction involving any Repurchase Document, Purchased Asset or Underlying Mortgaged Property, (x) any taxes attributable to the execution, delivery, filing or recording of any Repurchase Document, Whole Loan Document, Senior Interest Document or any memorandum of any of the foregoing, (xi) any Lien or claim arising on or against any Purchased Asset or related Underlying Mortgaged Property under any Requirements of Law or any liability asserted against Buyer or any Indemnified Person with respect thereto, (xii) (1) a past, present or future violation or alleged violation of any Environmental Laws in connection with any Mortgaged Property by any Person or other source, whether related or unrelated to Seller or any Underlying Obligor, (2) any presence of any Materials of Environmental Concern in violation of or giving rise to liability under any Environmental Law in, on, within, above, under, near, affecting or emanating from any Underlying Mortgaged Property, (3) the failure to timely perform any Remedial Work, (4) any past, present or future activity by any Person or other source, whether related or unrelated to Seller or any Underlying Obligor in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any Underlying Mortgaged Property of any Materials of Environmental Concern at any time located in, under, on, above or affecting any Underlying Mortgaged Property, (5) any past,

 

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present or future actual Release (whether intentional or unintentional, direct or indirect, foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting any Underlying Mortgaged Property by any Person or other source, whether related or unrelated to Seller or any Underlying Obligor, (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Lien on any Underlying Mortgaged Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant to any Environmental Law, or (7) any misrepresentation or failure to perform any obligations pursuant to any Repurchase Document, Whole Loan Document or Senior Interest Document relating to environmental matters in any way or, (xiii) Seller’s conduct, activities, actions and/or inactions in connection with, relating to or arising out of any of the foregoing clauses of this Section 13.01 , that, in each case, results from anything whatsoever other than any Indemnified Person’s gross negligence, bad faith or intentional misconduct, as determined by a court of competent jurisdiction pursuant to a final, non-appealable judgment. If any Indemnified Person or a third party (such Indemnified Person or such third party, a “ Transferee ”) takes title to any ownership interest in or to any Underlying Mortgaged Property through foreclosure or deed in lieu of foreclosure, the indemnities set forth above shall not apply to any loss or costs incurred by Transferee as a direct result of affirmative actions of Transferee as owner and operator of the Underlying Mortgaged Property after Transferee has acquired title to the Underlying Mortgaged Property, other than any affirmative actions taken in connection with any condition existing on any Underlying Mortgaged Property at the time title thereto was transferred to Transferee. In any suit, proceeding or action brought by an Indemnified Person in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, Seller shall defend, indemnify and hold such Indemnified Person harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the account debtor or Underlying Obligor arising out of a breach by Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or Underlying Obligor from Seller. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 13.01 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by Seller, an Indemnified Person or any other Person or any Indemnified Person is otherwise a party thereto and whether or not any Transaction is entered into.

(b) If for any reason the indemnification provided in this Section 13.01 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, even though such Indemnified Person is entitled to indemnification under the express terms thereof, then Seller shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by such Indemnified Person on the one hand and Seller on the other hand, the relative fault of such Indemnified Person, and any other relevant equitable considerations.

(c) An Indemnified Person may at any time send Seller a notice showing the calculation of Indemnified Amounts with reasonable backup therefor, and Seller shall pay such Indemnified Amounts to such Indemnified Person within ten (10) Business Days after Seller receives such notice. The obligations of Seller under this Section 13.01 shall apply to assignees and Participants and survive the termination of this Agreement.

 

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Section 13.02 Expenses . The terms and provisions governing expenses under this Section 13.02 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

ARTICLE 14

INTENT

Section 14.01 Safe Harbor Treatment . The Parties intend (a) for this Agreement, the Fee and Pricing Letter, the Servicing and Sub-Servicing Agreement, each supplement to this Agreement, including each Transaction Request, Irrevocable Redirection Notice and Confirmation, and each Transaction hereunder to constitute a single integrated, non-severable agreement, (b) for each such integrated agreement and the Transactions thereunder to qualify for the safe harbor treatment provided by the Bankruptcy Code and for Buyer to be entitled to all of the rights, benefits and protections afforded to Persons under the Bankruptcy Code with respect to a “repurchase agreement” as defined in Section 101(47) of the Bankruptcy Code and a “securities contract” as defined in Section 741(7) of the Bankruptcy Code and that payments under this Agreement are deemed “margin payments” or “settlement payments,” as defined in Sections 741(5) and 741(8) of the Bankruptcy Code, and transfers in connection with a “securities contract” or “repurchase agreement”, (c) for the grant of a security interest set forth in Article 11 to also be a “securities contract” as defined in Section 741(7)(A)(xi) of the Bankruptcy Code and a “repurchase agreement” as that term is defined in Section 101(47)(A)(v) of the Bankruptcy Code by virtue of it being “a security agreement or arrangement or other credit enhancement”, (d) for each of the Purchased Assets to constitute a “mortgage loan” or an “interest in a mortgage loan” as the terms are used in the Bankruptcy Code and (e) that Buyer (for so long as Buyer is a “financial institution,” “financial participant” or other entity listed in Section 546, 555, 559, 362(b)(6) or 362(b)(7) of the Bankruptcy Code) shall be entitled to the “safe harbor” benefits and protections afforded under the Bankruptcy Code with respect to a “repurchase agreement” and a “securities contract,” including (x) the rights, set forth in Article 10 and in Sections 555, 559 and 561 of the Bankruptcy Code, to liquidate the Purchased Assets and terminate this Agreement, and (y) the right to offset or net out as set forth in Article 10 and Section 18.17 and in Sections 362(b)(6) and 362(b)(7) of the Bankruptcy Code.

Section 14.02 Liquidation Rights . The Parties acknowledge and agree that (a) Buyer’s right to liquidate Purchased Assets delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Articles 10 and 11 and as otherwise provided in the Repurchase Documents is a “contractual right” to liquidate, terminate or accelerate such Transactions as described in Section 555, 559 and 561 of the Bankruptcy Code.

Section 14.03 Qualified Financial Contract . The Parties acknowledge and agree that if a Party is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“ FDIA ”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).

 

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Section 14.04 Netting Contract . The Parties acknowledge and agree that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“ FDICIA ”) and each payment entitlement and payment obligation under any Transaction shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation,” respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a “financial institution” as that term is defined in FDICIA).

Section 14.05 Master Netting Agreement . The Parties expressly represent, warrant, acknowledge and agree that this Agreement constitutes a “master netting agreement” as defined in Section 91(38A) of the Bankruptcy Code.

ARTICLE 15

DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS

The Parties acknowledge that they have been advised and understand that:

(a) in the case of Transactions in which one of the Parties is a broker or dealer registered with the Securities and Exchange Commission under Section 14 of the Securities Exchange Act of 1934, the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 do not protect the other Party with respect to any Transaction;

(b) in the case of Transactions in which one of the Parties is a government securities broker or a government securities dealer registered with the Securities and Exchange Commission under Section 14C of the Securities Exchange Act of 1934, the Securities Investor Protection Act of 1970 will not provide protection to the other Party with respect to any Transaction;

(c) in the case of Transactions in which one of the Parties is a financial institution, funds held by the financial institution pursuant to a Transaction are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable; and

(d) in the case of Transactions in which one of the Parties is an “insured depository institution” as that term is defined in Section 1813(c)(2) of Title 12 of the United States Code, funds held by the financial institution pursuant to a Transaction are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation, the Savings Association Insurance Fund or the Bank Insurance Fund, as applicable.

 

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ARTICLE 16

NO RELIANCE

Each Party acknowledges, represents and warrants to the other Party that, in connection with the negotiation of, entering into, and performance under, the Repurchase Documents and each Transaction:

(a) It is not relying (for purposes of making any investment decision or otherwise) on any advice, counsel or representations (whether written or oral) of the other Party, other than the representations expressly set forth in the Repurchase Documents;

(b) It has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent that it has deemed necessary, and it has made its own investment, hedging and trading decisions (including decisions regarding the suitability of any Transaction) based on its own judgment and on any advice from such advisors as it has deemed necessary and not on any view expressed by the other Party;

(c) It is a sophisticated and informed Person that has a full understanding of all the terms, conditions and risks (economic and otherwise) of the Repurchase Documents and each Transaction and is capable of assuming and willing to assume (financially and otherwise) those risks;

(d) It is entering into the Repurchase Documents and each Transaction for the purposes of managing its borrowings or investments or hedging its underlying assets or liabilities and not for purposes of speculation;

(e) It is not acting as a fiduciary or financial, investment or commodity trading advisor for the other Party and has not given the other Party (directly or indirectly through any other Person) any assurance, guaranty or representation whatsoever as to the merits (either legal, regulatory, tax, business, investment, financial accounting or otherwise) of the Repurchase Documents or any Transaction; and

(f) No partnership or joint venture exists or will exist as a result of the Transactions or entering into and performing the Repurchase Documents.

ARTICLE 17

SERVICING

This Article 17 shall apply to all Purchased Assets.

Section 17.01 Servicing Rights . The terms and provisions governing Servicing Rights under Section 17.01 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

 

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Section 17.02 Accounts Related to Purchased Assets . All accounts directly related to the Purchased Assets shall be maintained at institutions in accordance with and pursuant to the terms and conditions of the existing agreements including, without limitation, this Agreement; provided, however, that if any institution in which such accounts are currently held is not reasonably acceptable to Buyer, then at Buyer’s request, Seller shall cause the Underlying Obligor to enter into the contractual arrangements with Buyer and Seller that are necessary in order to create a perfected security interest in favor of Buyer in all such accounts, including, without limitation, an Account Control Agreement in form and substance reasonably acceptable to Buyer in its discretion.

Section 17.03 Servicing Reports . Seller shall deliver and cause Sub-Servicer to deliver to Buyer and Custodian a monthly remittance report on or before the 15th day of each month containing servicing information, including those fields reasonably requested by Buyer from time to time, on an asset-by-asset and in the aggregate, with respect to the Purchased Assets for the month (or any portion thereof) before the date of such report.

ARTICLE 18

MISCELLANEOUS

Section 18.01 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

Section 18.02 Submission to Jurisdiction; Service of Process . Buyer irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to the Repurchase Documents, or for recognition or enforcement of any judgment, and each Party irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such State court or, to the fullest extent permitted by applicable law, in such Federal court. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or the other Repurchase Documents shall affect any right that Buyer may otherwise have to bring any action or proceeding arising out of or relating to the Repurchase Documents against Seller or its properties in the courts of any jurisdiction. Seller irrevocably and unconditionally waives, to the fullest extent permitted by Requirements of Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to the Repurchase Documents in any court referred to above, and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each Party irrevocably consents to service of process in the manner provided for notices in Section 18.12 . Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

 

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Section 18.03 IMPORTANT WAIVERS .

(a) SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY BUYER OR ANY INDEMNIFIED PERSON.

(b) TO THE EXTENT PERMITTED BY REQUIREMENTS OF LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE BETWEEN THEM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH OR RELATED TO THE REPURCHASE DOCUMENTS, THE PURCHASED ASSETS, THE TRANSACTIONS, ANY DEALINGS OR COURSE OF CONDUCT BETWEEN THEM, OR ANY STATEMENTS (WRITTEN OR ORAL) OR OTHER ACTIONS OF EITHER PARTY. NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.

(c) TO THE EXTENT PERMITTED BY REQUIREMENTS OF LAW, SELLER HEREBY WAIVES ANY RIGHT TO CLAIM OR RECOVER IN ANY LITIGATION WHATSOEVER INVOLVING ANY INDEMNIFIED PERSON, ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES, WHETHER SUCH WAIVED DAMAGES ARE BASED ON STATUTE, CONTRACT, TORT, COMMON LAW OR ANY OTHER LEGAL THEORY, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN AND REGARDLESS OF THE FORM OF THE CLAIM OF ACTION, INCLUDING ANY CLAIM OR ACTION ALLEGING GROSS NEGLIGENCE, RECKLESS DISREGARD, WILLFUL OR WONTON MISCONDUCT, FAILURE TO EXERCISE REASONABLE CARE OR FAILURE TO ACT IN GOOD FAITH. NO INDEMNIFIED PERSON SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH ANY REPURCHASE DOCUMENT OR THE TRANSACTIONS.

(d) SELLER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF BUYER OR AN INDEMNIFIED PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BUYER OR AN INDEMNIFIED PERSON WOULD NOT SEEK TO ENFORCE ANY OF THE WAIVERS IN THIS SECTION 18.03 IN THE EVENT OF LITIGATION OR OTHER CIRCUMSTANCES. THE SCOPE OF SUCH WAIVERS IS INTENDED TO BE ALL–ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE REPURCHASE DOCUMENTS, REGARDLESS OF THEIR LEGAL THEORY.

(e) EACH PARTY ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTION 18.03 ARE A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS

 

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RELATIONSHIP, THAT SUCH PARTY HAS ALREADY RELIED ON SUCH WAIVERS IN ENTERING INTO THE REPURCHASE DOCUMENTS, AND THAT SUCH PARTY WILL CONTINUE TO RELY ON SUCH WAIVERS IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED SUCH WAIVERS WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL AND OTHER RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

(f) THE WAIVERS IN THIS SECTION 18.03 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO ANY OF THE REPURCHASE DOCUMENTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

(g) THE PROVISIONS OF THIS SECTION 18.03 SHALL SURVIVE TERMINATION OF THE REPURCHASE DOCUMENTS AND THE PAYMENT IN FULL OF THE OBLIGATIONS.

Section 18.04 Integration . The Repurchase Documents supersede and integrate all previous negotiations, contracts, agreements and understandings (whether written or oral) between the Parties relating to a sale and repurchase of Purchased Assets and the other matters addressed by the Repurchase Documents, and contain the entire final agreement of the Parties relating to the subject matter thereof.

Section 18.05 Single Agreement . Seller agrees that (a) each Transaction is in consideration of and in reliance on the fact that all Transactions constitute a single business and contractual relationship, and that each Transaction has been entered into in consideration of the other Transactions, (b) a default by it in the payment or performance of any its obligations under a Transaction shall constitute a default by it with respect to all Transactions, (c) Buyer may set off claims and apply properties and assets held by or on behalf of Buyer with respect to any Transaction against the Repurchase Obligations owing to Buyer with respect to other Transactions, and (d) payments, deliveries and other transfers made by or on behalf of Seller with respect to any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers with respect to all Transactions, and the obligations of Seller to make any such payments, deliveries and other transfers may be applied against each other and netted.

Section 18.06 Use of Employee Plan Assets . No assets of an employee benefit plan subject to any provision of ERISA shall be used by either Party in a Transaction.

Section 18.07 Survival and Benefit of Seller’s Agreements . The Repurchase Documents and all Transactions shall be binding on and shall inure to the benefit of the Parties and their successors and permitted assigns. All of Seller’s representations, warranties, agreements and indemnities in the Repurchase Documents shall survive the termination of the Repurchase Documents and the payment in full of the Repurchase Obligations, and shall apply to and benefit assignees and Participants. No other Person shall be entitled to any benefit, right, power, remedy or claim under the Repurchase Documents.

 

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Section 18.08 Assignments and Participations .

(a) Seller shall not sell, assign or transfer any of its rights or the Repurchase Obligations under this Agreement without the prior written consent of Buyer in its discretion, and any attempt by Seller to do so without such consent shall be null and void.

(b) Buyer may at any time, without the consent of or notice to Seller, sell participations to any Person (other than a natural person or Seller, Guarantor or any Affiliate of Seller or Guarantor or to a Prohibited Entity) (a “ Participant ”) in all or any portion of Buyer’s rights and/or obligations under the Repurchase Documents; provided , that (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (ii) Buyer shall remain solely responsible to Seller for the performance of such obligations, and (iii) Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents. No Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the extent that the Repurchase Price or Price Differential of any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.08(c) , but shall not be entitled to receive any greater payment thereunder than Buyer would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Seller’s prior written consent. To the extent permitted by Requirements of Law, each Participant shall be entitled to the benefits of Sections 10.02(j) and 18.17 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.08(c) .

(c) Buyer may at any time, upon notice to Seller, sell and assign all or any portion of all of the rights and obligations of Buyer under the Repurchase Documents to any assignee proposed by Buyer other than a Prohibited Entity. Each such assignment shall be made pursuant to an Assignment and Acceptance substantially in the form attached as Exhibit H (an “ Assignment and Acceptance ”). From and after the effective date of such Assignment and Acceptance, (i) such assignee shall be a Party and, to the extent provided therein, have the rights and obligations of Buyer under the Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, (ii) Buyer shall, to the extent provided therein, be released from such obligations (and, in the case of an Assignment and Acceptance covering all or the remaining portion of Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party); provided, however, that such assignment shall not release Buyer from any liabilities owing to Seller prior to such assignment unless expressly released by Seller, (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.08(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.08(b) .

 

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(d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided , that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller in its discretion.

(e) Subject to the requirements of this Section 18.08 , Buyer shall have the right to partially or completely syndicate and or all of its rights under the Agreement and the other Repurchase Documents to any assignee other than a Prohibited Entity.

Section 18.09 Ownership and Hypothecation of Purchased Assets . Title to all Purchased Assets shall pass to and vest in Buyer on the applicable Purchase Dates and, subject to the terms of the Repurchase Documents, Buyer or its designee shall have free and unrestricted use of all Purchased Assets and be entitled to exercise all rights, privileges and options relating to the Purchased Assets as the owner thereof, including rights of subscription, conversion, exchange, substitution, voting, consent and approval, and to direct any servicer or trustee. Buyer or its designee may engage in repurchase transactions with the Purchased Assets or otherwise sell, pledge, repledge, transfer, hypothecate, or rehypothecate the Purchased Assets, all on terms that Buyer may determine in its discretion; provided , that no such transaction shall affect the obligations of Buyer to transfer the Purchased Assets to Seller on the applicable Repurchase Dates free and clear of any pledge, Lien, security interest, encumbrance, charge or other adverse claim.

Section 18.10 Confidentiality . All information regarding the terms set forth in any of the Repurchase Documents or the Transactions shall be kept confidential and shall not be disclosed by either Party to any Person except (a) to the Affiliates of such Party or its or their respective directors, officers, employees, agents, advisors and other representatives who are informed of the confidential nature of such information and instructed to keep it confidential, (b) to the extent requested by any regulatory authority or required by Requirements of Law, (c) to the extent required to be included in the financial statements of either Party or an Affiliate thereof, (d) to the extent required to exercise any rights or remedies under the Repurchase Documents, Purchased Assets or Underlying Mortgaged Properties, (e) to the extent required to consummate and administer a Transaction, (f) to any actual or prospective Participant, assignee or Hedge Counterparty which agrees to comply with this Section 18.10 ; provided , that no such disclosure made with respect to any Repurchase Document shall include a copy of such Repurchase Document to the extent that a summary would suffice, but if it is necessary for a copy of any Repurchase Document to be disclosed, all pricing and other economic terms set forth therein shall be redacted before disclosure.

Section 18.11 No Implied Waivers . No failure on the part of Buyer to exercise, or delay in exercising, any right or remedy under the Repurchase Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy thereunder preclude any further exercise thereof or the exercise of any other right. The rights and remedies in the Repurchase Documents are cumulative and not exclusive of any rights and remedies provided by law. Application of the Default Rate after an Event of Default shall not be deemed to constitute a waiver of any Event of Default or Buyer’s rights and remedies with respect

 

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thereto, or a consent to any extension of time for the payment or performance of any obligation with respect to which the Default Rate is applied. Except as otherwise expressly provided in the Repurchase Documents, no amendment, waiver or other modification of any provision of the Repurchase Documents shall be effective without the signed agreement of Seller and Buyer. Any waiver or consent under the Repurchase Documents shall be effective only if it is in writing and only in the specific instance and for the specific purpose for which given.

Section 18.12 Notices and Other Communications . Unless otherwise provided in this Agreement, all notices, consents, approvals, requests and other communications required or permitted to be given to a Party hereunder shall be in writing and sent prepaid by hand delivery, by certified or registered mail, by expedited commercial or postal delivery service, or by facsimile or email if also sent by one of the foregoing, to the address for such Party specified in Annex I or such other address as such Party shall specify from time to time in a notice to the other Party. Any of the foregoing communications shall be effective when delivered or upon the first attempted delivery on a Business Day. A Party receiving a notice that does not comply with the technical requirements of this Section 18.12 may elect to waive any deficiencies and treat the notice as having been properly given.

Section 18.13 Counterparts; Electronic Transmission . Any Repurchase Document may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall together constitute but one and the same instrument.

Section 18.14 No Personal Liability . No administrator, incorporator, Affiliate, owner, member, partner, stockholder, officer, director, employee, agent or attorney of Buyer, any Indemnified Person, Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing, as such, shall be subject to any recourse or personal liability under or with respect to any obligation of Buyer, Seller, Guarantor, any Relevant Affiliate or any Affiliate of any of the foregoing under the Repurchase Documents, whether by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed that the obligations of Buyer, Seller and Guarantor under the Repurchase Documents are solely their respective corporate, limited liability company or partnership obligations, as applicable, and that any such recourse or personal liability is hereby expressly waived. This Section 18.14 shall survive the termination of the Repurchase Documents.

Section 18.15 Protection of Buyer’s Interests in the Purchased Assets; Further Assurances .

(a) Seller shall cause the Repurchase Documents and/or all financing statements and continuation statements and any other necessary documents covering the right, title and interest of Buyer to the Purchased Assets to be promptly recorded, registered and filed, and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law fully to preserve and protect such right, title and interest. Seller shall deliver to Buyer file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. Seller shall execute any and all documents reasonably required to fulfill the intent of this Section 18.15 .

 

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(b) Seller will promptly at its expense execute and deliver such instruments and documents and take such other actions as Buyer may reasonably request from time to time in order to perfect, protect, evidence, exercise and enforce Buyer’s rights and remedies under and with respect to the Repurchase Documents, the Transactions and the Purchased Assets.

(c) If Seller fails to perform any of its Repurchase Obligations, Buyer may (but shall not be required to) perform or cause to be performed such Repurchase Obligation, and the costs and expenses incurred by Buyer in connection therewith shall be payable by Seller. Without limiting the generality of the foregoing, Seller authorizes Buyer, at the option of Buyer and the expense of Seller, at any time and from time to time, to take all actions and pay all amounts that Buyer deems necessary or appropriate to protect, enforce, preserve, insure, service, administer, manage, perform, maintain, safeguard, collect or realize on the Purchased Assets and Buyer’s Liens and interests therein or thereon and to give effect to the intent of the Repurchase Documents. No Default or Event of Default shall be cured by the payment or performance of any Repurchase Obligation by Buyer on behalf of Seller. Buyer may make any such payment in accordance with any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax Lien, title or claim except to the extent such payment is being contested in good faith by Seller in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.

(d) Without limiting the generality of the foregoing, Seller will no earlier than six (6) or later than three (3) months before the fifth (5th) anniversary of the date of filing of each UCC financing statement filed in connection with any Repurchase Document or any Transaction, (i) deliver and file or cause to be filed an appropriate continuation statement with respect to such financing statement, and (ii) deliver or cause to be delivered to Buyer an opinion of counsel, in form and substance reasonably satisfactory to Buyer, confirming and updating the opinion delivered pursuant to Section 6.01(a) with respect to perfection and otherwise to the effect that the security interests hereunder continue to be enforceable and perfected security interests, subject to no other Liens of record except as provided herein or otherwise permitted hereunder, which opinion may contain usual and customary assumptions, limitations and exceptions.

(e) Except as provided in the Repurchase Documents, the sole duty of Buyer, Custodian or any other designee or agent of Buyer with respect to the Purchased Assets shall be to use reasonable care in the custody, use, operation and preservation of the Purchased Assets in its possession or control. Buyer shall incur no liability to Seller or any other Person for any act of Governmental Authority, act of God or other destruction in whole or in part or negligence or wrongful act of custodians or agents selected by and supervised by Buyer with reasonable care, or Buyer’s failure to provide adequate protection or insurance for the Purchased Assets. Buyer shall have no obligation to take any action to preserve any rights of Seller in any Purchased Asset against prior parties, and Seller hereby agrees to take such action. Buyer shall have no obligation to realize upon any Purchased Asset except through proper application of any distributions with respect to the Purchased Assets made directly to Buyer or its agent(s). So long as Buyer and Custodian shall act in good faith in their handling of the Purchased Assets, Seller waives or is deemed to have waived the defense of impairment of the Purchased Assets by Buyer and Custodian.

 

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Section 18.16 Default Rate . To the extent permitted by Requirements of Law, Seller shall pay interest at the Default Rate on the amount of all Repurchase Obligations not paid when due under the Repurchase Documents until such Repurchase Obligations are paid or satisfied in full.

Section 18.17 Set-off . The terms and provisions governing Set-off under this Section 18.17 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

Section 18.18 Seller’s Waiver of Setoff . Seller hereby waives any right of setoff it may have or to which it may be or become entitled under the Repurchase Documents or otherwise against Buyer, any Affiliate of Buyer, any Indemnified Person or their respective assets or properties.

Section 18.19 Periodic Due Diligence Review . Buyer may perform continuing due diligence reviews with respect to the Purchased Assets, Seller, Guarantor and any Relevant Affiliate, including ordering new third party reports, for purposes of, among other things, verifying compliance with the representations, warranties, covenants, agreements, duties, obligations and specifications made under the Repurchase Documents or otherwise. Upon reasonable prior notice to Seller, unless a Default or Event of Default exists, in which case no notice is required, Buyer or its representatives may during normal business hours inspect any properties and examine, inspect and make copies of the books and records of Seller, Guarantor, any Relevant Affiliate, the Whole Loan Documents, the Senior Interest Documents and the Servicing Files. Seller shall make available to Buyer one or more knowledgeable financial or accounting officers and representatives of the independent certified public accountants of Seller for the purpose of answering questions of Buyer concerning any of the foregoing. Seller shall cause Servicer and Sub-Servicer to cooperate with Buyer by permitting Buyer to conduct due diligence reviews of the Servicing Files. Buyer may purchase Purchased Assets from Seller based solely on the information provided by Seller to Buyer in the Underwriting Materials and the representations, warranties, duties, obligations and covenants contained herein, and Buyer may at any time conduct a partial or complete due diligence review on some or all of the Purchased Assets, including ordering new credit reports and new Appraisals on the Underlying Mortgaged Properties and otherwise re-generating the information used to originate and underwrite such Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a mutually acceptable third-party underwriter to do so.

Section 18.20 Time of the Essence . Time is of the essence with respect to all obligations, duties, covenants, agreements, notices or actions or inactions of Seller under the Repurchase Documents.

Section 18.21 Patriot Act Notice . Buyer hereby notifies Seller that Buyer is required by the Patriot Act to obtain, verify and record information that identifies Seller.

Section 18.22 Successors and Assigns; No Third Party Beneficiaries . Subject to the foregoing, the Repurchase Documents and any Transactions shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. Nothing in the Repurchase Documents, express or implied, shall give to any Person other than the Parties any benefit or any legal or equitable right, power, remedy or claim under the Repurchase Documents.

 

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Section 18.23 Purchase Option . The terms and provisions governing the Purchase Option under this Section 18.23 are set forth in the Fee and Pricing Letter, and are hereby incorporated by reference.

[ONE OR MORE UNNUMBERED SIGNATURE PAGES FOLLOW]

 

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IN WITNESS WHEREOF , the Parties have caused this Agreement to be duly executed as of the date first above written.

 

SELLER:

TRT LENDING SUBSIDIARY I, LLC, a Delaware

limited liability company

By:  

TRT Lending Subsidiary I Holdco, LLC,

a Delaware limited liability company, its sole member

By:  

TRT Lending LLC,

a Delaware limited liability company, its sole member

By:  

DCTRT Securities Holdco LLC,

a Delaware limited liability company, its sole member

By:   Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member
By:  

Dividend Capital Total Realty Trust Inc.,

a Maryland corporation, its general partner

By:  

 

  Name:
  Title:


BUYER:
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
By:  

 

  Its:
  Title:


Schedule 1(a)

REPRESENTATIONS AND WARRANTIES

RE: PURCHASED ASSETS CONSISTING OF WHOLE LOANS

Seller represents and warrants to Buyer, with respect to each Purchased Asset which is a Whole Loan, that except as specifically disclosed in the Transaction Request and/or the Confirmation for such Purchased Asset as of the Purchase Date for each such Purchased Asset by Buyer from Seller and as of the date of each Transaction hereunder and at all times while the Repurchase Documents or any Transaction hereunder is in full force and effect the representations set forth on this Schedule 1(a) shall be true and correct in all material respects. For purposes of this Schedule 1(a) and the representations and warranties set forth herein, a breach of a representation or warranty shall be deemed to have been cured with respect to a Purchased Asset that is a Whole Loan if and when either (a) Seller has taken or caused to be taken action such that the event, circumstance or condition that gave rise to such breach no longer affects such Purchased Asset, (b) Buyer has specifically waived such breach in writing or (c) Seller has repurchased such Purchased Asset in accordance with the terms of the Agreement.

1. The Whole Loan is a performing mortgage loan secured by a perfected security interest in a commercial or multifamily property.

2. As of the Purchase Date, such Whole Loan complies in all material respects with all requirements of federal, state or local law applicable to such Whole Loan.

3. Immediately prior to the sale, transfer and assignment to Buyer thereof, Seller had good and marketable title to, and was the sole owner and holder of, such Whole Loan, and Seller is transferring such Whole Loan free and clear of any and all liens, pledges, encumbrances, charges, security interests or any other ownership interests of any nature encumbering such Whole Loan. Upon consummation of the purchase contemplated to occur in respect of such Whole Loan on the Purchase Date therefor, Seller will have validly and effectively conveyed to Buyer all legal and beneficial interest in and to such Whole Loan free and clear of any pledge, lien, encumbrance or security interest. There are no participation agreements affecting such Whole Loan.

4. No fraudulent acts were committed by Seller in connection with its acquisition or origination of such Whole Loan nor were any fraudulent acts committed by any Person in connection with the origination of such Whole Loan.

5. All information contained in the related Underwriting Package (or as otherwise provided to Buyer) in respect of such Whole Loan is accurate and complete in all material respects. Seller has made available to Buyer for inspection, with respect to such Whole Loan, true, correct and complete Whole Loan Documents.

6. Except as included in the Underwriting Package, Seller is not a party to any document, instrument or agreement, and there is no document, instrument or agreement, that

 

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by its terms modifies or affects the rights and obligations of any holder of such Whole Loan and Seller has not and has not consented to any material change or waiver to any term or provision of any such document, instrument or agreement and, no such change or waiver exists.

7. Such Whole Loan is presently outstanding, the proceeds thereof have been fully and properly disbursed in accordance with the Whole Loan Documents and, except for amounts held in escrow by Seller, there is no requirement for any future advances thereunder.

8. Seller has full right, power and authority to sell and assign such Whole Loan and, such Whole Loan or any related Mortgage Note has not been cancelled, satisfied or rescinded in whole or part nor has any instrument been executed that would effect a cancellation, satisfaction or rescission thereof.

9. Other than consents and approvals obtained or waived in writing by Buyer as of the related Purchase Date or those already granted in the related Mortgage and/or Mortgage Note, no consent or approval by any Person is required in connection with Seller’s sale and/or Buyer’s acquisition of such Whole Loan, for Buyer’s exercise of any rights or remedies in respect of such Whole Loan or for Buyer’s sale, pledge or other disposition of such Whole Loan. No third party holds any “right of first refusal”, “right of first negotiation”, “right of first offer”, purchase option, or other similar rights of any kind, and no other impediment exists to any such transfer or exercise of rights or remedies.

10. No consent, approval, authorization or order of, or registration or filing with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority is required for any transfer or assignment by the holder of such Whole Loan, other than recordation of assignments of each Mortgage and other Mortgage Loan Documents securing the related Whole Loan in the applicable real estate records where the Mortgaged Properties are located and the filing of UCC-3 assignments in all applicable filing offices.

11. Seller has not received written notice of any material outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind relating to the Whole Loan for which the holder of such Whole Loan is or may become obligated.

12. Seller has not advanced funds, or knowingly received any advance of funds from a party other than the Mortgagor relating to such Whole Loan, directly or indirectly, for the payment of any amount required by such Whole Loan.

13. Each related Mortgage Note, Mortgage, assignment of leases (if a document separate from the Mortgage) and other agreement executed by the related Mortgagor in connection with such Whole Loan is legal, valid and binding obligation of the related Mortgagor (subject to any non-recourse provisions therein and any state anti-deficiency or market value limit deficiency legislation), enforceable in accordance with its terms, except (i) that certain provisions contained in such Whole Loan documents are or may be unenforceable in whole or in part under applicable state or federal laws, but neither the application of any such laws to any such provision nor the inclusion of any such provisions renders any of the Whole Loan documents invalid as a whole and such Whole Loan documents taken as a whole are

 

USActive 19770266.9   Sch. 1(a)-2  


enforceable to the extent necessary and customary for the practical realization of the rights and benefits afforded thereby and (ii) as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). The related Mortgage Note and Mortgage contain no provision limiting the right or ability of Seller to assign, transfer and convey the related Whole Loan to any other Person, except, however, for restrictions set forth in the Whole Loan Documents. With respect to any Underlying Mortgaged Property that has tenants, there exists as either part of the Mortgage or as a separate document, an assignment of leases.

14. As of the date of its origination, there was no valid offset, defense, counterclaim, abatement or right to rescission with respect to any related Mortgage Note, Mortgage or other agreements executed in connection therewith, and, as of the Purchase Date, there is no valid offset, defense, counterclaim or right to rescission with respect to any such Mortgage Note, Mortgage or other agreements, except in each case, with respect to the enforceability of any provisions requiring the payment of default interest, late fees, additional interest, prepayment premiums or yield maintenance charges.

15. Seller has delivered to Buyer or its designee the original Mortgage Note(s) made in respect of such Whole Loan, together with an original endorsement or allonge thereof executed by Seller in blank.

16. Each related assignment of Mortgage and assignment of Assignment of Leases from Seller in blank constitutes the legal, valid and binding first priority assignment from Seller (assuming the insertion of the Buyer’s name), except as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). Each Mortgage and Assignment of Leases is freely assignable.

17. The Whole Loan is secured by one or more Mortgages and each such Mortgage is a valid and enforceable first lien on the related Underlying Mortgaged Property subject only to the exceptions set forth in paragraph (13) above and the following title exceptions (each such title exception, a “ Title Exception ”, and collectively, the “ Title Exceptions ”): (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property, (c) the exceptions (general and specific) and exclusions set forth in the applicable policy described in paragraph (21) below or appearing of record, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property,

 

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(d) other matters to which like properties are commonly subject, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property, (e) the right of tenants (whether under ground leases, space leases or operating leases) at the Underlying Mortgaged Property to remain following a foreclosure or similar proceeding ( provided that such tenants are performing under such leases) and (f) if such Whole Loan is cross-collateralized with any other Whole Loan, the lien of the Mortgage for such other Whole Loan, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property. Except with respect to cross-collateralized and cross-defaulted Whole Loans and as provided below, there are no mortgage loans that are senior or pari passu with respect to the related Underlying Mortgaged Property or such Whole Loan.

18. UCC Financing Statements have been properly filed and/or recorded, in the UCC filing office, in each case, as required pursuant to Section 9-102 et. seq. of the UCC as in effect in the applicable jurisdiction, such that a validly perfected security interest in all items of personal property located on the Underlying Mortgaged Property that are owned by the Mortgagor and either (i) are reasonably necessary to operate the Underlying Mortgaged Property or (ii) are (as indicated in the appraisal obtained collateral pledged by the Mortgagor in connection with the origination of the related Whole Loan) material to the value of the Underlying Mortgaged Property (other than any personal property subject to a purchase money security interest or a sale and leaseback financing arrangement permitted under the terms of such Whole Loan or any other personal property leases applicable to such personal property), to the extent perfection may be effected by filing a UCC Financing Statement pursuant to the UCC as in effect in the applicable jurisdiction, with respect to each such debtor under each related Whole Loan, and the Mortgages, security agreements, chattel Mortgages or equivalent documents related to and delivered in connection with the related Whole Loan establish and create a valid and enforceable lien and first priority security interest on such items of collateral (subject only to Permitted Liens of the type described in clause (a) of the definition thereof) except as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditor’s rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

19. All real estate taxes and governmental assessments, or installments thereof, which would be a lien on the Underlying Mortgaged Property and that prior to the Purchase Date have become delinquent in respect of the Underlying Mortgaged Property have been paid or, if contested, an escrow of funds in an amount sufficient to cover such payments has been established. For purposes of this representation and warranty, real estate taxes and governmental assessments and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority.

 

USActive 19770266.9   Sch. 1(a)-4  


20. As of the Purchase Date, the related Underlying Mortgaged Property is free and clear of any material damage (other than deferred maintenance for which escrows were established at origination or which are currently being maintained) that would affect materially and adversely the value of such Underlying Mortgaged Property as security for the Whole Loan and there is no proceeding pending or, based solely upon the delivery of written notice thereof from the appropriate condemning authority, threatened for the total or partial condemnation of such Underlying Mortgaged Property.

21. The lien of each related Mortgage as a first priority lien in the original principal amount of such Whole Loan after all advances of principal is insured by an ALTA lender’s title insurance policy (or a binding commitment therefor), or its equivalent as adopted in the applicable jurisdiction, insuring Seller, its successors and assigns, subject only to the Title Exceptions; the holder of the Mortgage (the “ Mortgagee ”) or its successors or assigns is the sole named insured of such policy; such policy is assignable without consent of the insurer and will inure to the benefit of the Mortgagee of record; such title policy is in full force and effect upon the consummation of the transactions contemplated by this Agreement; all premiums thereon have been paid; no claims have been made under such policy and, to the Knowledge of Seller, no circumstance exists which would impair or diminish the coverage of such policy. The insurer issuing such policy is either (x) a nationally recognized title insurance company or (y) qualified to do business in the jurisdiction in which the related Underlying Mortgaged Property is located to the extent required; such policy contains no material exclusions for, or affirmatively insures (except for any Underlying Mortgaged Property located in a jurisdiction where such insurance is not available) (a) access to public road or (b) against any loss due to encroachments of any material portion of the improvements thereon.

22. With respect to each Whole Loan, since the date of its origination, all insurance coverage required under each related Mortgage has been maintained, and such insurance covered such risks as were customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property in the jurisdiction in which such Underlying Mortgaged Property is located, and with respect to a fire and extended perils insurance policy, is in an amount (subject to a customary deductible) at least equal to the lesser of (i) the replacement cost of improvements located on such Underlying Mortgaged Property, or (ii) the outstanding principal balance of the Whole Loan, and in any event, the amount necessary to prevent operation of any co-insurance provisions and is also covered by business interruption or rental loss insurance in an amount at least equal to 12 months of operations of the related Underlying Mortgaged Property, all of which was in full force and effect with respect to the related Underlying Mortgaged Property and all insurance coverage required under each Mortgage, which insurance covers such risks and is in such amounts as are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property in the jurisdiction in which such Underlying Mortgaged Property is located, is in full force and effect with respect to the related Underlying Mortgaged Property; all premiums due and payable through the Purchase Date have been paid; and no notice of termination or cancellation with respect to any such insurance policy has been received by Seller; and except for certain amounts not greater than amounts which would be considered prudent by an institutional commercial and/or multifamily mortgage lender with respect to a similar Whole Loan and which are set forth in the related

 

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Mortgage, any insurance proceeds in respect of a casualty loss, will be applied either (i) to the repair or restoration of all or part of the related Underlying Mortgaged Property or (ii) the reduction of the outstanding principal balance of the Whole Loan, subject in either case to requirements with respect to leases at the related Underlying Mortgaged Property and to other exceptions customarily provided for by prudent institutional lenders for similar loans. The Underlying Mortgaged Property is also covered by comprehensive general liability insurance against claims for personal and bodily injury, death or property damage occurring on, in or about the related Underlying Mortgaged Property, in an amount customarily required by prudent institutional lenders. An architectural or engineering consultant has performed an analysis of the Underlying Mortgaged Property located in seismic zone 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the probable maximum loss (“PML”) for the Underlying Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475 year lookback with a 10% probability of exceedance in a 50 year period. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Underlying Mortgaged Property was obtained by an insurer rated at least A-:V by A.M. Best Company or “BBB-” (or the equivalent) from S&P and Fitch or “Baa3” (or the equivalent) from Moody’s. If the Underlying Mortgaged Property is located in Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina or South Carolina such Underlying Mortgaged Property is insured by windstorm insurance in an amount at least equal to the lesser of (i) the outstanding principal balance of such Whole Loan and (ii) 100% of the full insurable value, or 100% of the replacement cost, of the improvements located on the related Underlying Mortgaged Property.

The insurance policies contain a standard Mortgagee clause naming Seller, its successors and assigns as loss payee, in the case of a property insurance policy, and additional insured in the case of a liability insurance policy and provide that they are not terminable without at least thirty (30) days prior written notice to the Mortgagee. Each Mortgage requires that the Mortgagor maintain insurance as described above or permits the Mortgagee to require insurance as described above, and permits the Mortgagee to purchase such insurance at the Mortgagor’s expense if Mortgagor fails to do so.

23. Other than payments due but not yet 30 days or more delinquent, there is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note, and no event has occurred (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, provided, however , that (i) this representation and warranty does not address or otherwise cover any default, breach, violation or event of acceleration that specifically pertains to any matter otherwise covered by any other representation and warranty made by Seller in any paragraph of this Schedule 1(a) and (ii) Seller has not waived any material default, breach, violation or event of acceleration under such Mortgage or Mortgage Note and pursuant to the terms of the related Mortgage or the related Mortgage Note and other documents in the related Whole Loan Documents no Person or party other than the holder of such Mortgage Note may declare any event of default or accelerate the related indebtedness under either of such Mortgage or Mortgage Note.

 

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24. As of the Purchase Date, such Whole Loan is not 30 days or more past due in respect of any scheduled payment.

25. Each related Mortgage does not provide for or permit, without the prior written consent of the holder of the Mortgage Note, the related Underlying Mortgaged Property to secure any other promissory note or obligation except as expressly described in the following sentence. The related Underlying Mortgaged Property is not encumbered, and none of the Whole Loan documents permits the related Underlying Mortgaged Property to be encumbered subsequent to the Purchase Date without the prior written consent of the holder of such Whole Loan, by any lien securing the payment of money junior to or of equal priority with, or superior to, the lien of the related Mortgage (other than Title Exceptions, taxes, assessments and contested mechanics and materialmens liens that become payable after the Purchase Date of the related Whole Loan and easements which are necessary for the operation of the Underlying Mortgaged Property that do not have a material adverse effect on such Underlying Mortgaged Property).

26. Such Whole Loan constitutes a “qualified mortgage” within the meaning of Section 860G(a)(3)of the Code (without regard to Treasury Regulations Sections 1.860G-2(a)(3) or 1.860G-2(f)(2)), is directly secured by a Mortgage on a commercial property or a multifamily residential property, and either (1) substantially all of the proceeds of such Whole Loan were used to acquire, improve or protect the portion of such commercial or multifamily residential property that consists of an interest in real property (within the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was the only security for such Whole Loan as of the Testing Date (as defined below), or (2) the fair market value of the interest in real property which secures such Whole Loan was at least equal to 80% of the principal amount of the Whole Loan (a) as of the Testing Date, or (b) as of the Purchase Date. For purposes of the previous sentence, (1) the fair market value of the referenced interest in real property shall first be reduced by (a) the amount of any lien on such interest in real property that is senior to the Whole Loan, and (b) a proportionate amount of any lien on such interest in real property that is on a parity with the Whole Loan, and (2) the “ Testing Date ” shall be the date on which the referenced Whole Loan was originated unless (a) such Whole Loan was modified after the date of its origination in a manner that would cause a “significant modification” of such Whole Loan within the meaning of Treasury Regulations Section 1.1001-3(b), and (b) such “significant modification” did not occur at a time when such Whole Loan was in default or when default with respect to such Whole Loan was reasonably foreseeable. However, if the referenced Whole Loan has been subjected to a “significant modification” after the date of its origination and at a time when such Whole Loan was not in default or when default with respect to such Whole Loan was not reasonably foreseeable, the Testing Date shall be the date upon which the latest such “significant modification” occurred.

27. There is no material and adverse environmental condition or circumstance affecting the Underlying Mortgaged Property; there is no material violation of any applicable Environmental Law with respect to the Underlying Mortgaged Property; neither Seller nor the Underlying Obligor has taken any actions which would cause the Underlying Mortgaged Property not to be in compliance with all applicable Environmental Laws; the underlying Whole Loan documents require the borrower to comply with all Environmental Laws; and each Mortgagor has agreed to indemnify the Mortgagee for any losses resulting from any material, adverse environmental condition or failure of the Mortgagor to abide by such Environmental Laws or has provided environmental insurance.

 

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28. Each related Mortgage and Assignment of Leases, together with applicable state law, contains customary and enforceable provisions for comparable mortgaged properties similarly situated such as to render the rights and remedies of the holder thereof adequate for the practical realization against the Underlying Mortgaged Property of the benefits of the security, including realization by judicial or, if applicable, non-judicial foreclosure, subject to the effects of bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

29. To Seller’s Knowledge, no Mortgagor is a debtor in any state or federal bankruptcy or insolvency proceeding.

30. Such Whole Loan is a whole loan and contains no equity participation by the lender of the Whole Loan or shared appreciation feature and does not provide for any contingent or additional interest in the form of participation in the cash flow of the related Underlying Mortgaged Property or provide for negative amortization. Seller holds no preferred equity interest in the Mortgagor.

31. Subject to certain exceptions, which are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property, each related Mortgage or loan agreement contains provisions for the acceleration of the payment of the unpaid principal balance of such Whole Loan if, without complying with the requirements of the Mortgage or loan agreement, (a) the related Underlying Mortgaged Property, or any controlling interest in the related Mortgagor, is directly transferred or sold (other than by reason of family and estate planning transfers, transfers by devise, descent or operation of law upon the death of a member, general partner or shareholder of the related borrower and transfers of less than a controlling interest (as such term is defined in the related Whole Loan documents) in a mortgagor, issuance of non-controlling new equity interests, transfers among existing members, partners, shareholders and beneficiaries in the Mortgagor and their constituent members, partners, shareholders or beneficiaries or any affiliate thereof, transfers among affiliated Mortgagors with respect to Whole Loans which are cross-collateralized or cross-defaulted with other mortgage loans or multi-property Whole Loans or transfers of a similar nature to the foregoing meeting the requirements of the Whole Loan (such as pledges of ownership interests that do not result in a change of control) or a substitution or release of collateral within the parameters of paragraph (34) below), or (b) the related Underlying Mortgaged Property or controlling interest in the borrower is encumbered in connection with subordinate financing by a lien or security interest against the related Underlying Mortgaged Property, other than any existing permitted additional debt. The Whole Loan Documents require the borrower to pay all reasonable costs incurred by the Mortgagor with respect to any transfer, assumption or encumbrance requiring lender’s approval.

 

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32. Except as set forth in the related Whole Loan Documents delivered to Buyer, the terms of the related Mortgage Note(s) and Mortgage(s) have not been waived, modified, altered, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by such Mortgage and no such waiver, modification, alteration, satisfaction, impairment, cancellation, subordination or recission has occurred since the date upon which the due diligence file related to the applicable Whole Loan was delivered to Buyer or its designee.

33. Each related Underlying Mortgaged Property was inspected by or on behalf of the related originator or an affiliate during the 12 month period prior to the related origination date.

34. Since origination, no material portion of the related Underlying Mortgaged Property has been released from the lien of the related Mortgage in any manner which materially and adversely affects the value of the Whole Loan or materially interferes with the security intended to be provided by such Mortgage, and, except with respect to Whole Loans (a) which permit defeasance by means of substituting for the Underlying Mortgaged Property (or, in the case of a Whole Loan secured by multiple Underlying Mortgaged Properties, one or more of such Underlying Mortgaged Properties) “government securities” as defined in the Investment Company Act of 1940, as amended, sufficient to pay the Whole Loans (or portions thereof) in accordance with its terms, (b) where a release of the portion of the Underlying Mortgaged Property was contemplated at origination and such portion was not considered material for purposes of underwriting the Whole Loan, (c) where release is conditional upon the satisfaction of certain underwriting and legal requirements and the payment of a release price that represents adequate consideration for such Underlying Mortgaged Property or the portion thereof that is being released, (d) which permit the related Mortgagor to substitute a replacement property in compliance with REMIC provisions or (e) which permit the release(s) of unimproved out-parcels or other portions of the Underlying Mortgaged Property that will not have a material adverse effect on the underwritten value of the security for the Whole Loan or that were not allocated to any value in the underwriting during the origination of the Whole Loan, the terms of the related Mortgage do not provide for release of any portion of the Underlying Mortgaged Property from the lien of the Mortgage except in consideration of payment in full therefor.

35. There are no material violations of any applicable zoning ordinances, building codes or land laws applicable to the Underlying Mortgaged Property or the use and occupancy thereof which (i) are not insured by an ALTA lender’s title insurance policy (or a binding commitment therefor), or its equivalent as adopted in the applicable jurisdiction, or a law and ordinance insurance policy or (ii) would have a material adverse effect on the value, operation or net operating income of the Underlying Mortgaged Property. The Whole Loan documents require the Underlying Mortgaged Property to comply in all material respects with all applicable laws and ordinances.

36. None of the material improvements that were included for the purposes of determining the appraised value of the related Underlying Mortgaged Property at the time of the origination of the Whole Loan lies outside of the boundaries and building restriction lines of such property (except Underlying Mortgaged Properties which are legal non-conforming uses), to an extent which would have a material adverse affect on the value of the Underlying

 

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Mortgaged Property or related Mortgagor’s use and operation of such Underlying Mortgaged Property (unless affirmatively covered by title insurance) and no improvements on adjoining properties encroached upon such Underlying Mortgaged Property to any material and adverse extent (unless affirmatively covered by title insurance).

37. The related Mortgagor has covenanted in its organizational documents and/or the Whole Loan documents to own no significant asset other than the related Underlying Mortgaged Properties, as applicable, and assets incidental to its ownership and operation of such Underlying Mortgaged Properties, and to hold itself out as being a legal entity, separate and apart from any other Person.

38. No advance of funds has been made other than pursuant to the loan documents, directly or indirectly, by Seller to the Mortgagor and to Seller’s Knowledge, no funds have been received from any Person other than the Mortgagor, for or on account of payments due on the Mortgage Note or the Mortgage.

39. As of the Purchase Date, there was no pending action, suit or proceeding, or governmental investigation of which Seller has received notice, against the Mortgagor or the related Underlying Mortgaged Property the adverse outcome of which could reasonably be expected to materially and adversely affect such Mortgagor’s ability to pay principal, interest or any other amounts due under such Whole Loan or the security intended to be provided by the Whole Loan documents or the current use of the Underlying Mortgaged Property.

40. As of the Purchase Date, if the related Mortgage is a deed of trust, a trustee, duly qualified under applicable law to serve as such, has either been properly designated and serving under such Mortgage or may be substituted in accordance with the Mortgage and applicable law.

41. The interest rate under the Whole Loan (exclusive of any default interest, late charges or prepayment premiums) contracted for complied as of the date of origination with, or is exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

42. Each Whole Loan that is cross-collateralized or cross-defaulted is cross-collateralized or cross-defaulted, as applicable, only with other Whole Loans sold pursuant to this Agreement.

43. The improvements located on the Underlying Mortgaged Property are either not located in a federally designated special flood hazard area or, if so located, the Mortgagor is required to maintain or the Mortgagee maintains, flood insurance with respect to such improvements and such policy is in full force and effect in an amount no less than the lesser of (i) the original principal balance of the Whole Loan, (ii) the value of such improvements on the related Underlying Mortgaged Property located in such flood hazard area or (iii) the maximum allowed under the related federal flood insurance program.

44. All escrow deposits and payments required pursuant to the Whole Loan as of the Purchase Date required to be deposited with Seller in accordance with the Whole Loan documents have been so deposited, are in the possession, or under the control, of Seller or its agent.

 

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45. As of the Purchase Date, to Seller’s Knowledge, the related Mortgagor, the related lessee, franchisor or operator was in possession of all material licenses, permits and authorizations then required for use of the related Underlying Mortgaged Property by the related Mortgagor. The Whole Loan documents require the borrower to maintain all such licenses, permits and authorizations.

46. The origination (or acquisition, as the case may be), servicing and collection practices used by Seller with respect to the Whole Loan have been in all respects legal and have met customary industry standards for servicing of commercial mortgage loans of such type.

47. Except for Mortgagors under Whole Loans secured in whole or in part by a Ground Lease, the related Mortgagor (or its affiliate) has title in the fee simple interest in each related Underlying Mortgaged Property.

48. The Whole Loan documents for such Whole Loan provide that such Whole Loan is non-recourse to the related Mortgagor except that the related Mortgagor and an additional guarantor accepts responsibility for any loss incurred due to fraud on the part of the Mortgagor and/or other intentional material misrepresentation. Furthermore, the Whole Loan documents for each Whole Loan provide that the related Mortgagor and an additional guarantor shall be liable to the lender for losses incurred due to the misapplication or misappropriation of rents collected in advance or received by the related Mortgagor after the occurrence of an event of default and not paid to the Mortgagee or applied to the Underlying Mortgaged Property in the ordinary course of business, misapplication or conversion by the Mortgagor of insurance proceeds or condemnation awards or breach of the environmental covenants in the Whole Loan Documents.

49. Subject to the exceptions set forth in paragraph (13) and upon possession of the Underlying Mortgaged Property as required under applicable state law, any Assignment of Leases set forth in the Mortgage or separate from the related Mortgage and related to and delivered in connection with such Whole Loan establishes and creates a valid, subsisting and enforceable lien and security interest in the related Mortgagor’s interest in all leases, subleases, licenses or other agreements pursuant to which any Person is entitled to occupy, use or possess all or any portion of the real property.

50. With respect to such Whole Loan, any prepayment premium and yield maintenance charge constitutes a “customary prepayment penalty” within the meaning of Treasury Regulations Section 1.860G-1(b)(2).

51. If such Whole Loan contains a provision for any defeasance of mortgage collateral, such Whole Loan permits defeasance (1) no earlier than two years after any securitization of such Whole Loan and (2) only with substitute collateral constituting “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under the Mortgage Note. Such Whole

 

USActive 19770266.9   Sch. 1(a)-11  


Loan was not originated with the intent to collateralize a REMIC offering with obligations that are not real estate mortgages. In addition, if such Mortgage contains such a defeasance provision, it provides (or otherwise contains provisions pursuant to which the holder can require) that an opinion be provided to the effect that such holder has a first priority perfected security interest in the defeasance collateral. The related Whole Loan documents permit the lender to charge all of its expenses associated with a defeasance to the Mortgagor (including rating agencies’ fees, accounting fees and attorneys’ fees), and provide that the related Mortgagor must deliver (or otherwise, the Whole Loan documents contain certain provisions pursuant to which the lender can require) (a) an accountant’s certification as to the adequacy of the defeasance collateral to make payments under the related Whole Loan for the remainder of its term, (b) an opinion of counsel that the defeasance complies with all applicable REMIC provisions, and (c) assurances from each applicable Rating Agency that the defeasance will not result in the withdrawal, downgrade or qualification of the ratings assigned to any certificates backed by the related Whole Loan. Notwithstanding the foregoing, some of the Whole Loan documents may not affirmatively contain all such requirements, but such requirements are effectively present in such documents due to the general obligation to comply with the REMIC provisions and/or deliver a REMIC opinion of counsel.

52. To the extent required under applicable law as of the date of origination, and necessary for the enforceability or collectability of the Whole Loan, the originator of such Whole Loan was authorized to do business in the jurisdiction in which the related Underlying Mortgaged Property is located at all times when it originated and held the Whole Loan.

53. Neither Seller nor any Affiliate thereof has any obligation to make any capital contributions to the Mortgagor under the Whole Loan.

54. [reserved].

55. Each related Underlying Mortgaged Property constitutes one or more complete separate tax lots (or the related Mortgagor has covenanted to obtain separate tax lots and a Person has indemnified the Mortgagee for any loss suffered in connection therewith or an escrow of funds in an amount sufficient to pay taxes resulting from a breach thereof has been established) or is subject to an endorsement under the related title insurance policy.

56. An appraisal of the related Underlying Mortgaged Property was conducted in connection with the origination of such Whole Loan; and such appraisal satisfied either (A) the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial Institutions Reform, Recovery and Enforcement Act or 1989, in either case as in effect on the date such Whole Loan was originated.

57. The related Whole Loan documents require the Mortgagor to provide the Mortgagee with certain financial information at the times required under the related Whole Loan documents.

 

USActive 19770266.9   Sch. 1(a)-12  


58. The related Underlying Mortgaged Property is served by public utilities, water and sewer (or septic facilities) and otherwise appropriate for the use in which the Underlying Mortgaged Property is currently being utilized.

59. With respect to each related Underlying Mortgaged Property consisting of a Ground Lease, Seller represents and warrants the following with respect to the related Ground Lease:

(i) Such Ground Lease or a memorandum thereof has been or will be duly recorded no later than 30 days after the Purchase Date and such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage or, if consent of the lessor thereunder is required, it has been obtained prior to the Purchase Date.

(ii) Upon the foreclosure of the Whole Loan (or acceptance of a deed in lieu thereof), the Mortgagor’s interest in such Ground Lease is assignable to the Mortgagee under the leasehold estate and its assigns without the consent of the lessor thereunder (or, if any such consent is required, it has been obtained prior to the Purchase Date).

(iii) Such Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of the Mortgagee, and any such action without such consent is not binding on the Mortgagee, its successors or assigns, except termination or cancellation if (i) an event of default occurs under the Ground Lease, (ii) notice thereof is provided to the Mortgagee and (iii) such default is curable by the Mortgagee as provided in the Ground Lease but remains uncured beyond the applicable cure period.

(iv) Such Ground Lease is in full force and effect, there is no material default under such Ground Lease, and there is no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default under such Ground Lease.

(v) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give notice of any default by the lessee to the Mortgagee. The Ground Lease or ancillary agreement further provides that no notice given is effective against the Mortgagee unless a copy has been given to the Mortgagee in a manner described in the Ground Lease or ancillary agreement.

(vi) The Ground Lease (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, subject, however, to only the Title Exceptions or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Underlying Mortgaged Property is subject.

(vii) A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease) to cure any curable default under such Ground Lease before the lessor thereunder may terminate such Ground Lease.

(viii) Such Ground Lease has an original term (together with any extension options, whether or not currently exercised, set forth therein all of which can be exercised by the Mortgagee if the Mortgagee acquires the lessee’s rights under the Ground Lease) that extends not less than 20 years beyond the stated maturity date of the Whole Loan.

 

USActive 19770266.9   Sch. 1(a)-13  


(ix) Under the terms of such Ground Lease, any estoppel or consent letter received by the Mortgagee from the lessor, and the related Mortgage, taken together, any related insurance proceeds or condemnation award (other than in respect of a total or substantially total loss or taking) will be applied either to the repair or restoration of all or part of the related Underlying Mortgaged Property, with the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment or defeasance of the outstanding principal balance of the Whole Loan, together with any accrued interest (except in cases where a different allocation would not be viewed as commercially unreasonable by any commercial mortgage lender, taking into account the relative duration of the Ground Lease and the related Mortgage and the ratio of the market value of the related Underlying Mortgaged Property to the outstanding principal balance of such Whole Loan).

(x) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial lender.

(xi) The ground lessor under such Ground Lease is required to enter into a new lease upon termination of the Ground Lease for any reason, including the rejection of the Ground Lease in bankruptcy.

 

USActive 19770266.9   Sch. 1(a)-14  


Schedule 1(b)

REPRESENTATIONS AND WARRANTIES

RE: PURCHASED ASSETS CONSISTING OF SENIOR INTERESTS

Seller represents and warrants to Buyer, with respect to each Purchased Asset which is a Senior Interest, that except as specifically disclosed in the Transaction Request and/or the Confirmation for such Purchased Asset, as of the Purchase Date for each such Purchased Asset by Buyer from Seller and as of the date of each Transaction hereunder and at all times while the Repurchase Documents or any Transaction hereunder is in full force and effect the representations set forth on this Schedule 1(b) shall be true and correct in all material respects. For purposes of this Schedule 1(b) and the representations and warranties set forth herein, a breach of a representation or warranty shall be deemed to have been cured with respect to a Purchased Asset that is a Senior Interest if and when either (a) Seller has taken or caused to be taken action such that the event, circumstance or condition that gave rise to such breach no longer affects such Purchased Asset or (b) Buyer has specifically waived such breach in writing, or (c) Seller has repurchased such Purchased Asset in accordance with the terms of the Agreement.

1. The Senior Interest is (a) a senior participation interest in a Whole Loan or (b) an “A-note” in an “A/B structure” in a Whole Loan.

2. As of the Purchase Date, the Senior Interest Documents comply in all material respects with, or is exempt from, all requirements of federal, state or local law applicable to such Senior Interest.

3. Immediately prior to the sale, transfer and assignment to Buyer thereof, Seller had good and marketable title to, and was the sole owner and holder of, such Senior Interest, and Seller is transferring such Senior Interest free and clear of any and all liens, pledges, encumbrances, charges, security interests or any other ownership interests of any nature encumbering such Senior Interest. Upon consummation of the purchase contemplated to occur in respect of such Senior Interest on the Purchase Date therefor, Seller will have validly and effectively conveyed to Buyer all legal and beneficial interest in and to such Senior Interest free and clear of any pledge, lien, encumbrance or security interest.

4. No fraudulent acts were committed by Seller in connection with its acquisition or origination of such Senior Interest nor were any fraudulent acts committed by any Person in connection with the origination of such Senior Interest.

5. All information contained in the related Underwriting Package (or as otherwise provided to Buyer) in respect of such Senior Interest is accurate and complete in all material respects, Seller has made available to Buyer for inspection, with respect to such Senior Interest, true, correct and complete Whole Loan Documents.

6. Except as included in the Underwriting Package, Seller is not a party to any document, instrument or agreement, and there is no document, that by its terms modifies or

 

USActive 19770266.9   Sch. 1(b)-1  


affects the rights and obligations of any holder of such Senior Interest and Seller has not consented to any material change or waiver to any term or provision of any such document, instrument or agreement and no such change or waiver exists.

7. Seller has full right, power and authority to sell and assign such Senior Interest and such Senior Interest or any related Mortgage Note has not been cancelled, satisfied or rescinded in whole or part nor has any instrument been executed that would effect a cancellation, satisfaction or rescission thereof.

8. Other than consents and approvals obtained, or waived in writing by Buyer, as of the related Purchase Date or those already granted in the related Mortgage and/or Mortgage Note, no consent or approval by any Person is required in connection with Seller’s sale and/or Buyer’s acquisition of such Senior Interest, for Buyer’s exercise of any rights or remedies in respect of such Senior Interest or for Buyer’s sale, pledge or other disposition of such Senior Interest. No third party holds any “right of first refusal”, “right of first negotiation”, “right of first offer”, purchase option, or other similar rights of any kind, and no other impediment exists to any such transfer or exercise of rights or remedies.

9. No consent, approval, authorization or order of, or registration or filing with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority is required for any transfer or assignment by the holder of such Senior Interest, other than recordation of assignments of each Mortgage and other Mortgage Loan Documents securing the related Whole Loan in the applicable real estate records where the Underlying Mortgaged Properties are located and the filing of UCC-3 assignments in all applicable filing offices.

10. Seller has delivered to Buyer or its designee the original promissory note, certificate or other similar indicia of ownership of such Senior Interest, however denominated, together with an original assignment thereof, executed by Seller in blank.

11. No default or event of default has occurred under any Senior Interest Documents, and there is no provision in any such agreement which would provide for any increase in the principal amount of any such lien or other interest.

12. No (i) monetary default, breach or violation exists with respect to any agreement or other document governing or pertaining to such Senior Interest, the related Whole Loan or any other obligation of the Underlying Obligor, (ii) material non-monetary default, breach or violation exists with respect to such Senior Interest, the related Whole Loan or any other obligation of the Underlying Obligor, or (iii) event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration.

13. Such Senior Interest has not been and shall not be deemed to be a Security within the meaning of the Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as amended.

14. Each related underlying Whole Loan complies in all material respects with, or is exempt from, all requirements of federal, state or local law relating to the origination of such underlying Whole Loan.

 

USActive 19770266.9   Sch. 1(b)-2  


15. Seller has not received written notice of any material outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind relating to the Senior Interest for which the holder of such Senior Interest is or may become obligated under the Senior Interest Documents.

16. Seller has not advanced funds, or knowingly received any advance of funds from a party other than the Mortgagor relating to such Senior Interest, directly or indirectly, for the payment of any amount required by such Senior Interest.

17. With respect to each related underlying Whole Loan, each related Mortgage Note, Mortgage, assignment of leases (if a document separate from the Mortgage) and other agreement executed by the related Mortgagor in connection with such underlying Whole Loan is legal, valid and binding obligation of the related Mortgagor (subject to any non-recourse provisions therein and any state anti-deficiency or market value limit deficiency legislation), enforceable in accordance with its terms, except (i) that certain provisions contained in such underlying Whole Loan documents are or may be unenforceable in whole or in part under applicable state or federal laws, but neither the application of any such laws to any such provision nor the inclusion of any such provisions renders any of the underlying Whole Loan documents invalid as a whole and such underlying Whole Loan documents taken as a whole are enforceable to the extent necessary and customary for the practical realization of the rights and benefits afforded thereby and (ii) as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). The related Mortgage Note and Mortgage contain no provision limiting the right or ability of any holder thereof to assign, transfer and convey all or any portion of the related underlying Whole Loan or the related Senior Interest to any other Person, except, however, for restrictions set forth in the Senior Interest Documents. With respect to any Underlying Mortgaged Property that has tenants, there exists as either part of the Mortgage or as a separate document, an assignment of leases.

18. With respect to the Senior Interest and each related underlying Whole Loan, as of the date of its origination, there was no valid offset, defense, counterclaim, abatement or right to rescission with respect to any related Mortgage Note, Mortgage or other agreements executed in connection therewith, and, as of the Purchase Date for the related Purchased Asset, there is no valid offset, defense, counterclaim or right to rescission with respect to any such Mortgage Note, Mortgage or other agreements, except in each case, with respect to the enforceability of any provisions requiring the payment of default interest, late fees, additional interest, prepayment premiums or yield maintenance charges.

19. With respect to the underlying Whole Loan, each related Assignment of Mortgage and assignment of Assignment of Leases from Seller in blank constitutes the legal, valid and binding first priority assignment from Seller (assuming the insertion of the Buyer’s name), except as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). Each Mortgage and Assignment of Leases is freely assignable.

 

USActive 19770266.9   Sch. 1(b)-3  


20. The underlying Whole Loan is secured by one or more Mortgages and each such Mortgage is a valid and enforceable first lien on the related Underlying Mortgaged Property subject only to the exceptions set forth in paragraph (17) above and the following title exceptions (each such title exception, a “ Title Exception ”, and collectively, the “ Title Exceptions ”): (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the underlying Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property, (c) the exceptions (general and specific) and exclusions set forth in the applicable policy described in paragraph (24) below or appearing of record, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the underlying Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property, (d) other matters to which like properties are commonly subject, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the underlying Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property, (e) the right of tenants (whether under ground leases, space leases or operating leases) at the Underlying Mortgaged Property to remain following a foreclosure or similar proceeding ( provided that such tenants are performing under such leases) and (f) if such underlying Whole Loan is cross-collateralized with any other underlying Whole Loan, the lien of the Mortgage for such other underlying Whole Loan, none of which, individually or in the aggregate, materially and adversely interferes with the current use of the Underlying Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor’s ability to pay its obligations under the underlying Whole Loan when they become due or materially and adversely affects the value of the Underlying Mortgaged Property. Except with respect to cross-collateralized and cross-defaulted underlying Whole Loans and as provided below, there are no mortgage loans that are senior or pari passu with respect to the related Underlying Mortgaged Property or such underlying Whole Loan.

21. UCC Financing Statements have been properly filed and/or recorded in the UCC filing office, in each case, as required pursuant to Section 9-102 et. seq. of the UCC as in effect in the applicable jurisdiction, such that a validly perfected security interest in all items of personal property located on each related Underlying Mortgaged Property, that are owned by the Mortgagor and either (i) are reasonably necessary to operate such Underlying Mortgaged Property or (ii) are (as indicated in the appraisal obtained in connection with the origination of the related underlying Whole Loan) material to the value of such Underlying Mortgaged Property (other than any personal property subject to a purchase money security interest or a sale and leaseback financing arrangement permitted under the terms of such underlying Whole Loan or any other personal property leases applicable to such personal property), to the extent

 

USActive 19770266.9   Sch. 1(b)-4  


perfection may be effected by filing a UCC Financing Statement pursuant to the UCC as in effect in the applicable jurisdiction, with respect to each such debtor under each related Whole Loan, and the Mortgages, security agreements, chattel Mortgages or equivalent documents related to and delivered in connection with the related underlying Whole Loan establish and create a valid and enforceable lien and first priority security interest on such items of collateral (subject only to Permitted Liens of the type in clause (a) of the definition thereof) except as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws affecting the enforcement of creditor’s rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

22. All real estate taxes and governmental assessments, or installments thereof, which would be a lien on any related Underlying Mortgaged Property and that prior to the Purchase Date for the related Purchased Asset have become delinquent in respect of such Underlying Mortgaged Property have been paid, or, if contested, an escrow of funds in an amount sufficient to cover such payments has been established. For purposes of this representation and warranty, real estate taxes and governmental assessments and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority.

23. As of the Purchase Date for the related Purchased Asset, each related Underlying Mortgaged Property was free and clear of any material damage (other than deferred maintenance for which escrows were established at origination or which are currently being maintained) that would affect materially and adversely the value of such Underlying Mortgaged Property as security for the related underlying Whole Loan and there was no proceeding pending or, based solely upon the delivery of written notice thereof from the appropriate condemning authority, threatened for the total or partial condemnation of such Underlying Mortgaged Property.

24. With respect to each related underlying Whole Loan, the lien of each related Mortgage as a first priority lien in the original principal amount of such underlying Whole Loan after all advances of principal is insured by an ALTA lender’s title insurance policy (or a binding commitment therefor), or its equivalent as adopted in the applicable jurisdiction, insuring the Mortgagee, its successors and assigns, subject only to the Title Exceptions; the Mortgagee or its successors or assigns is the sole named insured of such policy; such policy is assignable without consent of the insurer and Seller and will inure to the benefit of the trustee as Mortgagee of record; such title policy is in full force and effect upon the consummation of the transactions contemplated by this Agreement; all premiums thereon have been paid; no claims have been made under such policy and, to the Knowledge of Seller, no circumstance exists which would impair or diminish the coverage of such policy. The insurer issuing such policy is either (x) a nationally-recognized title insurance company or (y) qualified to do business in the jurisdiction in which the related Underlying Mortgaged Property is located to the extent required; such policy contains no material exclusions for, or affirmatively insures (except for any Underlying Mortgaged Property located in a jurisdiction where such insurance is not available) (a) access to public road or (b) against any loss due to encroachments of any material portion of the improvements thereon.

 

USActive 19770266.9   Sch. 1(b)-5  


25. With respect to each related underlying Whole Loan, since the date of its origination, all insurance coverage required under each related Mortgage has been maintained, and such insurance covered such risks as were customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property in the jurisdiction in which such Underlying Mortgaged Property is located, and with respect to a fire and extended perils insurance policy, is in an amount (subject to a customary deductible) at least equal to the lesser of (i) the replacement cost of improvements located on such Underlying Mortgaged Property, or (ii) the outstanding principal balance of the underlying Whole Loan, and in any event, the amount necessary to prevent operation of any co-insurance provisions and is also covered by business interruption or rental loss insurance, in an amount at least equal to 12 months of operations of the related Underlying Mortgaged Property, all of which was in full force and effect with respect to each related Underlying Mortgaged Property all insurance coverage required under each Mortgage, which insurance covers such risks and is in such amounts as are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property in the jurisdiction in which such Underlying Mortgaged Property is located, is in full force and effect with respect to each related Underlying Mortgaged Property; all premiums due and payable through the Purchase Date for the related Purchased Asset have been paid; and no notice of termination or cancellation with respect to any such insurance policy has been received by Seller; and except for certain amounts not greater than amounts which would be considered prudent by an institutional commercial and/or multifamily mortgage lender with respect to a similar mortgage loan and which are set forth in the related Mortgage, any insurance proceeds in respect of a casualty loss, will be applied either (i) to the repair or restoration of all or part of the related Underlying Mortgaged Property or (ii) the reduction of the outstanding principal balance of the underlying Whole Loan, subject in either case to requirements with respect to leases at the related Underlying Mortgaged Property and to other exceptions customarily provided for by prudent institutional lenders for similar loans. The Underlying Mortgaged Property is also covered by comprehensive general liability insurance against claims for personal and bodily injury, death or property damage occurring on, in or about the related Underlying Mortgaged Property, in an amount customarily required by prudent institutional lenders. An architectural or engineering consultant has performed an analysis of the Underlying Mortgaged Properties located in seismic zone 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the probable maximum loss (“ PML ”) for the Underlying Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475 year lookback with a 10% probability of exceedance in a 50 year period. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Underlying Mortgaged Property was obtained by an insurer rated at least A-:V by A.M. Best Company or “BBB-” (or the equivalent) from S&P and Fitch or “Baa3” (or the equivalent) from Moody’s. If the Underlying Mortgaged Property is located in Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina or South Carolina such Underlying Mortgaged Property is insured by windstorm insurance in an amount at least equal to the lesser of (i) the outstanding principal balance of such underlying Whole Loan and (ii) 100% of the full insurable value, or 100% of the replacement cost, of the improvements located on the related Underlying Mortgaged Property.

 

USActive 19770266.9   Sch. 1(b)-6  


26. The insurance policies contain a standard Mortgagee clause naming the Mortgagee, its successors and assigns as loss payee, in the case of a property insurance policy, and additional insured in the case of a liability insurance policy and provide that they are not terminable without at least thirty (30) days prior written notice to the Mortgagee. Each Mortgage requires that the Mortgagor maintain insurance as described above or permits the Mortgagee to require insurance as described above, and permits the Mortgagee to purchase such insurance at the Mortgagor’s expense if Mortgagor fails to do so.

27. With respect to any underlying Whole Loan (a) other than payments due but not yet 30 days or more delinquent, there is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note, and no event has occurred (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, provided, however , that (i) this representation and warranty does not address or otherwise cover any default, breach, violation or event of acceleration that specifically pertains to any matter otherwise covered by any other representation and warranty made by Seller in any paragraph of this Schedule 1(b) and (ii) Seller has not waived any material default, breach, violation or event of acceleration under the related Mortgage or Mortgage Note and, pursuant to the terms of such Mortgage or Mortgage Note and other underlying Whole Loan documents, no Person or party other than the holder of the related Mortgage Note may declare any event of default or accelerate the related indebtedness under either of such Mortgage or Mortgage Note.

28. As of the Purchase Date, the underlying Whole Loan is not, since origination, and has not been, 30 days or more past due in respect of any scheduled payment.

29. Each Mortgage related to the underlying Whole Loan does not provide for or permit, without the prior written consent of the holder of the Mortgage Note, the related Underlying Mortgaged Property to secure any other promissory note or obligation except as expressly described in the following sentence. The related Underlying Mortgaged Property is not encumbered, and none of the Whole Loan documents permits the related Underlying Mortgaged Property to be encumbered subsequent to the Purchase Date without the prior written consent of the holder of such Whole Loan, by any lien securing the payment of money junior to or of equal priority with, or superior to, the lien of the related Mortgage (other than Title Exceptions, taxes, assessments and contested mechanics and materialmens liens that become payable after the Purchase Date of the related Whole Loan and easements which are necessary for the operation of the Underlying Mortgaged Property that do not have a material adverse effect on such Underlying Mortgaged Property).

30. Each related underlying Whole Loan secured by commercial or multifamily residential property constitutes a “qualified mortgage” within the meaning of Section 860G(a)(3)of the Code (without regard to Treasury Regulations Sections 1.860G-2(a)(3) or 1.860G-2(f)(2)), is directly secured by a Mortgage on such commercial property or a multifamily residential property, and either (1) substantially all of the proceeds of such underlying Whole Loan were used to acquire, improve or protect the portion of such commercial or multifamily residential property that consists of an interest in real property (within the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such interest in real

 

USActive 19770266.9   Sch. 1(b)-7  


property was the only security for such underlying Whole Loan as of the Testing Date (as defined below), or (2) the fair market value of the interest in real property which secures such underlying Whole Loan was at least equal to 80% of the principal amount of the underlying Whole Loan (a) as of the Testing Date, or (b) as of the Purchase Date for the related Purchased Asset. For purposes of the previous sentence, (1) the fair market value of the referenced interest in real property shall first be reduced by (a) the amount of any lien on such interest in real property that is senior to the underlying Whole Loan, and (b) a proportionate amount of any lien on such interest in real property that is on a parity with the underlying Whole Loan, and (2) the “ Testing Date ” shall be the date on which the referenced underlying Whole Loan was originated unless (a) such underlying Whole Loan was modified after the date of its origination in a manner that would cause a “significant modification” of such underlying Whole Loan within the meaning of Treasury Regulations Section 1.1001-3(b), and (b) such “significant modification” did not occur at a time when such underlying Whole Loan was in default or when default with respect to such underlying Whole Loan was reasonably foreseeable. However, if the referenced underlying Whole Loan has been subjected to a “significant modification” after the date of its origination and at a time when such underlying Whole Loan was not in default or when default with respect to such underlying Whole Loan was not reasonably foreseeable, the Testing Date shall be the date upon which the latest such “significant modification” occurred.

31. There is no material and adverse environmental condition or circumstance affecting the Underlying Mortgaged Property; there is no material violation of any applicable Environmental Law with respect to the Underlying Mortgaged Property; neither Seller nor the Underlying Obligor has taken any actions which would cause the Underlying Mortgaged Property not to be in compliance with all applicable Environmental Laws; the underlying Whole Loan documents require the borrower to comply with all Environmental Laws; and each Mortgagor has agreed to indemnify the Mortgagee for any losses resulting from any material, adverse environmental condition or failure of the Mortgagor to abide by such Environmental Laws or has provided environmental insurance.

32. With respect to each related underlying Whole Loan, each related Mortgage and Assignment of Leases, together with applicable state law, contains customary and enforceable provisions for comparable mortgaged properties similarly situated such as to render the rights and remedies of the holder thereof adequate for the practical realization against the Underlying Mortgaged Property of the benefits of the security, including realization by judicial or, if applicable, non-judicial foreclosure, subject to the effects of bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws relating to or affecting the enforcement of creditors’ rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

33. To Seller’s Knowledge, no issuer of the Purchased Asset, no co-participant and no Mortgagor related to any underlying Whole Loan, is a debtor in any state or federal bankruptcy or insolvency proceeding.

34. Except for the related Purchased Asset, each related underlying Whole Loan is a whole loan and contains no equity participation by the lender or shared appreciation feature and does not provide for any contingent or additional interest in the form of participation in the cash flow of the related Underlying Mortgaged Property or provide for negative amortization.

 

USActive 19770266.9   Sch. 1(b)-8  


35. With respect to each related underlying Whole Loan, subject to certain exceptions, which are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Underlying Mortgaged Property, each related Mortgage or loan agreement contains provisions for the acceleration of the payment of the unpaid principal balance of such underlying Whole Loan if, without complying with the requirements of the Mortgage or loan agreement, (a) the related Underlying Mortgaged Property, or any controlling interest in the related Mortgagor, is directly transferred or sold (other than by reason of family and estate planning transfers, transfers by devise, descent or operation of law upon the death of a member, general partner or shareholder of the related borrower and transfers of less than a controlling interest (as such term is defined in the related underlying Whole Loan documents) in a mortgagor, issuance of non-controlling new equity interests, transfers among existing members, partners or shareholders in the Mortgagor or an affiliate thereof, transfers among affiliated Mortgagors with respect to underlying Whole Loans that are cross-collateralized or cross-defaulted with other mortgage loans or transfers of a similar nature to the foregoing meeting the requirements of the underlying Whole Loan (such as pledges of ownership interests that do not result in a change of control) or a substitution or release of collateral within the parameters of paragraph (38) below), or (b) the related Underlying Mortgaged Property or controlling interest in the borrower is encumbered in connection with subordinate financing by a lien or security interest against the related Underlying Mortgaged Property, other than any existing permitted additional debt. The underlying Whole Loan documents require the borrower to pay all reasonable costs incurred by the Mortgagor with respect to any transfer, assumption or encumbrance requiring lender’s approval.

36. With respect to each Purchased Asset and the related underlying Whole Loan, except as set forth in the related Purchased Asset documents delivered to Buyer, the terms of the related documents have not been waived, modified, altered, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by such documents and no such waiver, modification, alteration, satisfaction, impairment, cancellation, subordination or recission has occurred since the date upon which the due diligence file related to the applicable Purchased Asset was delivered to Buyer or its designee.

37. Each related Underlying Mortgaged Property was inspected by or on behalf of the related originator or an affiliate during the 12 month period prior to the related origination date.

38. Since origination, no material portion of any related Underlying Mortgaged Property has been released from the lien of the related Mortgage in any manner which materially and adversely affects the value of the underlying Whole Loan or the Purchased Asset or materially interferes with the security intended to be provided by such Mortgage, and, except with respect to underlying Whole Loans (a) which permit defeasance by means of substituting for the Underlying Mortgaged Property (or, in the case of an underlying Whole Loan secured by multiple Underlying Mortgaged Properties, one or more of such Underlying

 

USActive 19770266.9   Sch. 1(b)-9  


Mortgaged Properties) “government securities” as defined in the Investment Company Act of 1940, as amended, sufficient to pay the underlying Whole Loan (or portions thereof) in accordance with its terms, (b) where a release of the portion of the Underlying Mortgaged Property was contemplated at origination and such portion was not considered material for purposes of underwriting the underlying Whole Loan, (c) where release is conditional upon the satisfaction of certain underwriting and legal requirements and the payment of a release price that represents adequate consideration for such Underlying Mortgaged Property or the portion thereof that is being released, (d) which permit the related Mortgagor to substitute a replacement property in compliance with REMIC provisions or (e) which permit the release(s) of unimproved out-parcels or other portions of the Underlying Mortgaged Property that will not have a material adverse effect on the underwritten value of the security for the underlying Whole Loan or that were not allocated to any value in the underwriting during the origination of the underlying Whole Loan, the terms of the related Mortgage do not provide for release of any portion of the Underlying Mortgaged Property from the lien of the Mortgage except in consideration of payment in full therefor.

39. With respect to each related underlying Whole Loan, there are no material violations of any applicable zoning ordinances, building codes and land laws applicable to the Underlying Mortgaged Property or the use and occupancy thereof which (i) are not insured by an ALTA lender’s title insurance policy (or a binding commitment therefor), or its equivalent as adopted in the applicable jurisdiction, or a law and ordinance insurance policy or (ii) would have a material adverse effect on the value, operation or net operating income of the Underlying Mortgaged Property. The underlying Whole Loan documents require the Underlying Mortgaged Property to comply in all material respects with all applicable laws and ordinances.

40. None of the material improvements that were included for the purposes of determining the appraised value of any related Underlying Mortgaged Property at the time of the origination of the respective underlying Whole Loan lies outside of the boundaries and building restriction lines of such property (except Underlying Mortgaged Properties which are legal non-conforming uses), to an extent which would have a material adverse affect on the value of the Underlying Mortgaged Property or related Mortgagor’s use and operation of such Underlying Mortgaged Property (unless affirmatively covered by title insurance) and no improvements on adjoining properties encroached upon such Underlying Mortgaged Property to any material and adverse extent (unless affirmatively covered by title insurance).

41. The related Mortgagor has covenanted in its respective organizational documents and/or the underlying Whole Loan documents to own no significant asset other than the related Underlying Mortgaged Properties, as applicable, and assets incidental to its respective ownership and operation of such Underlying Mortgaged Properties, and to hold itself out as being a legal entity, separate and apart from any other Person.

42. With respect to each related underlying Whole Loan, no advance of funds has been made other than pursuant to the loan documents, directly or indirectly, by Seller to the Mortgagor and, to Seller’s Knowledge, no funds have been received from any Person other than the Mortgagor, for or on account of payments due on the Mortgage Note or the Mortgage related thereto.

 

USActive 19770266.9   Sch. 1(b)-10  


43. With respect to each related underlying Whole Loan, as of the Purchase Date for the related Purchased Asset, there was no pending action, suit or proceeding, or governmental investigation of which it has received notice, against the Mortgagor or the related Underlying Mortgaged Property the adverse outcome of which could reasonably be expected to materially and adversely affect such Mortgagor’s ability to pay principal, interest or any other amounts due under such underlying Whole Loan or the security intended to be provided by the underlying Whole Loan documents or the current use of the Underlying Mortgaged Property.

44. With respect to each related underlying Whole Loan, if the related Mortgage is a deed of trust, a trustee, duly qualified under applicable law to serve as such, has either been properly designated and serving under such Mortgage or may be substituted in accordance with the Mortgage and applicable law.

45. With respect to the Purchased Asset and each related underlying Whole Loan, such underlying Whole Loan and the Purchased Asset and all interest thereon (exclusive of any default interest, late charges or prepayment premiums) contracted for complied as of the date of origination with, or is exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

46. Each underlying Whole Loan that is cross-collateralized is cross-collateralized only with other underlying Whole Loans sold pursuant to this Agreement.

47. The improvements located on the Underlying Mortgaged Property are either not located in a federally designated special flood hazard area or, if so located, the Mortgagor is required to maintain or the Mortgagee maintains, flood insurance with respect to such improvements and such policy is in full force and effect in an amount no less than the lesser of (i) the original principal balance of the underlying Whole Loan, (ii) the value of such improvements on the related Underlying Mortgaged Property located in such flood hazard area or (iii) the maximum allowed under the related federal flood insurance program.

48. All escrow deposits and payments required pursuant to the underlying Whole Loan as of the Purchase Date required to be deposited with Seller in accordance with the underlying Whole Loan documents have been so deposited, are in the possession, or under the control, of Seller or its agent and there are no deficiencies in connection therewith.

49. With respect to each related underlying Whole Loan, as of the Purchase Date, to Seller’s Knowledge, the related Mortgagor, the related lessee, franchisor or operator was in possession of all material licenses, permits and authorizations then required for use of the related Underlying Mortgaged Property by the related Mortgagor. The underlying Whole Loan documents require the borrower to maintain all such licenses, permits and authorizations.

50. With respect to the Senior Interest and each related underlying Whole Loan, the origination (or acquisition, as the case may be), servicing and collection practices used by Seller with respect to such underlying Whole Loan have been in all respects legal and have met customary industry standards for servicing of commercial mortgage loans of such type.

51. With respect to each related underlying Whole Loan, except for Mortgagors under underlying Whole Loans secured in whole or in part by a Ground Lease, the related Mortgagor (or its affiliate) has title in the fee simple interest in each related Underlying Mortgaged Property.

 

USActive 19770266.9   Sch. 1(b)-11  


52. The documents for each related underlying Whole Loan provide that each such underlying Whole Loan is non-recourse to the related Mortgagor except that the related Mortgagor and an additional guarantor accepts responsibility for any loss incurred due to fraud on the part of the Mortgagor and/or other intentional material misrepresentation. Furthermore, the documents for each related underlying Whole Loan provide that the related Mortgagor and an additional guarantor shall be liable to the lender for losses incurred due to the misapplication or misappropriation of rents collected in advance or received by the related Mortgagor after the occurrence of an event of default and not paid to the Mortgagee or applied to the Underlying Mortgaged Property in the ordinary course of business, misapplication or conversion by the Mortgagor of insurance proceeds or condemnation awards or breach of the environmental covenants in the related underlying Whole Loan documents.

53. Subject to the exceptions set forth in paragraph (17) and upon possession of the Underlying Mortgaged Property as required under applicable state law, any Assignment of Leases set forth in the Mortgage or separate from the related Mortgage and related to and delivered in connection with each underlying Whole Loan establishes and creates a valid, subsisting and enforceable lien and security interest in the related Mortgagor’s interest in all leases, subleases, licenses or other agreements pursuant to which any Person is entitled to occupy, use or possess all or any portion of the real property.

54. With respect to each related underlying Whole Loan, any prepayment premium and yield maintenance charge constitutes a “customary prepayment penalty” within the meaning of Treasury Regulations Section 1.860G-1(b)(2).

55. If any related underlying Whole Loan contains a provision for any defeasance of mortgage collateral, such underlying Whole Loan permits defeasance (1) no earlier than two years after any securitization of the underlying Whole Loan or the Senior Interest and (2) only with substitute collateral constituting “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under the Mortgage Note. No related underlying Whole Loan was originated with the intent to collateralize a REMIC offering with obligations that are not real estate mortgages. In addition, if the Mortgage related to any such underlying Whole Loan contains such a defeasance provision, it provides (or otherwise contains provisions pursuant to which the holder can require) that an opinion be provided to the effect that such holder has a first priority perfected security interest in the defeasance collateral. The related underlying Whole Loan documents permit the lender to charge all of its expenses associated with a defeasance to the Mortgagor (including rating agencies’ fees, accounting fees and attorneys’ fees), and provide that the related Mortgagor must deliver (or otherwise, the underlying Whole Loan documents contain certain provisions pursuant to which the lender can require) (a) an accountant’s certification as to the adequacy of the defeasance collateral to make payments under the related underlying Whole Loan for the remainder of its term, (b) an opinion of counsel that the defeasance complies with all applicable REMIC provisions, and (c) assurances from each applicable Rating Agency that the defeasance will not result in the withdrawal, downgrade or qualification of the ratings assigned to any certificates backed by the related underlying Whole Loan or the Senior Interest.

 

USActive 19770266.9   Sch. 1(b)-12  


Notwithstanding the foregoing, some of the underlying Whole Loan documents may not affirmatively contain all such requirements, but such requirements are effectively present in such documents due to the general obligation to comply with the REMIC provisions and/or deliver a REMIC opinion of counsel.

56. With respect to each related underlying Whole Loan, to the extent required under applicable law as of the date of origination, and necessary for the enforceability or collectability of such underlying Whole Loan, the originator of such underlying Whole Loan was authorized to do business in the jurisdiction in which the related Underlying Mortgaged Property is located at all times when it originated and held the underlying Whole Loan.

57. Neither Seller nor any Affiliate thereof has any obligation to make any capital contributions to the Mortgagor under any related underlying Whole Loan.

58. With respect to each related underlying Whole Loan, the related Underlying Mortgaged Property is not encumbered, and none of the underlying Whole Loan documents permits the related Underlying Mortgaged Property to be encumbered subsequent to the Purchase Date of the related Purchased Asset without the prior written consent of the holder thereof, by any lien securing the payment of money junior to or of equal priority with, or superior to, the lien of the related Mortgage (other than Title Exceptions, taxes, assessments and contested mechanics and materialmens liens that become payable after such Purchase Date).

59. [reserved].

60. With respect to each related underlying Whole Loan, an appraisal of the related Underlying Mortgaged Property was conducted in connection with the origination of such underlying Whole Loan; and such appraisal satisfied either (A) the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial Institutions Reform, Recovery and Enforcement Act or 1989, in either case as in effect on the date such underlying Whole Loan was originated.

61. With respect to each related underlying Whole Loan, the related underlying Whole Loan documents require the Mortgagor to provide the Mortgagee with certain financial information at the times required under such underlying Whole Loan documents.

62. With respect to each related underlying Whole Loan, the related Underlying Mortgaged Property is served by public utilities, water and sewer (or septic facilities) and otherwise appropriate for the use in which the Underlying Mortgaged Property is currently being utilized.

63. With respect to each related Underlying Mortgaged Property consisting of a Ground Lease, Seller represents and warrants the following with respect to the related Ground Lease:

(i) Such Ground Lease or a memorandum thereof has been or will be duly recorded no later than 30 days after the Purchase Date of the related Purchased Asset and such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage or, if consent of the lessor thereunder is required, it has been obtained prior to the Purchase Date.

 

USActive 19770266.9   Sch. 1(b)-13  


(ii) Upon the foreclosure of the underlying Whole Loan (or acceptance of a deed in lieu thereof), the Mortgagor’s interest in such Ground Lease is assignable to the Mortgagee under the leasehold estate and its assigns without the consent of the lessor thereunder (or, if any such consent is required, it has been obtained prior to the Purchase Date).

(iii) Such Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of the Mortgagee and any such action without such consent is not binding on the Mortgagee, its successors or assigns, except termination or cancellation if (i) an event of default occurs under the Ground Lease, (ii) notice thereof is provided to the Mortgagee and (iii) such default is curable by the Mortgagee as provided in the Ground Lease but remains uncured beyond the applicable cure period.

(iv) Such Ground Lease is in full force and effect, there is no material default under such Ground Lease, and there is no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default under such Ground Lease.

(v) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give notice of any default by the lessee to the Mortgagee. The Ground Lease or ancillary agreement further provides that no notice given is effective against the Mortgagee unless a copy has been given to the Mortgagee in a manner described in the Ground Lease or ancillary agreement.

(vi) The Ground Lease (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, subject, however, to only the Title Exceptions or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Underlying Mortgaged Property is subject.

(vii) A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease) to cure any curable default under such Ground Lease before the lessor thereunder may terminate such Ground Lease.

(viii) Such Ground Lease has an original term (together with any extension options, whether or not currently exercised, set forth therein all of which can be exercised by the Mortgagee if the Mortgagee acquires the lessee’s rights under the Ground Lease) that extends not less than 20 years beyond the stated maturity date of the underlying Whole Loan.

(ix) Under the terms of such Ground Lease, any estoppel or consent letter received by the Mortgagee from the lessor, and the related Mortgage, taken together, any related insurance proceeds or condemnation award (other than in respect of a total or substantially total loss or taking) will be applied either to the repair or restoration of all or part of the related Underlying Mortgaged Property, with the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment or defeasance of the outstanding principal balance of the underlying Whole Loan, together with any accrued interest

 

USActive 19770266.9   Sch. 1(b)-14  


(except in cases where a different allocation would not be viewed as commercially unreasonable by any commercial mortgage lender, taking into account the relative duration of the Ground Lease and the related Mortgage and the ratio of the market value of the related Underlying Mortgaged Property to the outstanding principal balance of such underlying Whole Loan).

(x) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial lender.

(xi) The ground lessor under such Ground Lease is required to enter into a new lease upon termination of the Ground Lease for any reason, including the rejection of the Ground Lease in bankruptcy.

 

USActive 19770266.9   Sch. 1(b)-15  


EXHIBIT LIST

 

     

EXHIBIT

Transaction Request

  A

Confirmation

  B

Guarantee

  C

Irrevocable Redirection Notice

  D

Custodial Agreement

  E

Power of Attorney

  F

Purchased Asset Data Summary

  G

Assignment and Acceptance

  H

Closing Certificate

  I

Compliance Certificate

  J

Account Control Agreement

  K

Servicing and Sub-Servicing Agreement

  L

Controlled Account Agreement

  M

Omnibus Assignment

  N

Responsible Officer’s Certificate

  O

Locations of Buyer and Seller

  Annex I

 

USActive 19772222.15   1  


EXHIBIT A

FORM OF TRANSACTION REQUEST

[    ] [  ], 20[  ]

Wells Fargo Bank, National Association

One Wachovia Center

301 South College Street

MAC D1053-160, 16 th Floor

Charlotte, North Carolina 28202

Attention:

 

  Re: Master Repurchase and Securities Contract dated as of June 25, 2010, (the

Agreement ”) between TRT Lending Subsidiary I, LLC (“ Seller ”) and

Wells Fargo Bank, National Association (“ Buyer ”)

Ladies and Gentlemen:

This is a Transaction Request (as this and other terms used but not defined herein are defined in the Agreement) delivered pursuant to Section 3.01 of the Agreement. Seller hereby requests that Buyer enter into a Transaction upon the proposed terms set forth below.

 

Asset (including Class and

Underlying Mortgaged Property):

  

 

  

 

Book Value:

  

 

  

 

Market Value:

  

 

  

 

Applicable Percentage:

                %   

 

Maximum Applicable Percentage:

                %   

 

Excess Funding Capacity:

   [$                                                           ]   
(as of the date of this Transaction Request, if any)      

 

Whole Loan/Senior Interest Documents:

   As described in Appendix 1 hereto   

 

Purchase Date:

   [    ] [  ], 20[  ]   

 

Purchase Price:

   $                                                             

 

USActive 19772222.15   2  


Except as specified in Appendix 1 hereto, on the Purchase Date for each Asset described in this Transaction Request, Seller will make all of the representations and warranties contained in the Agreement (including Schedule 1 to the Agreement as applicable to the Class of such Asset) with respect thereto.

 

Seller :

TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company

By:   TRT Lending Subsidiary I Holdco, LLC,
  a Delaware limited liability company, its
  sole member
  By:   TRT Lending LLC, a Delaware limited liability company, its sole member
    By:   DCTRT Securities Holdco LLC, a Delaware limited liability company, its sole member
      By:   Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member
        By:   Dividend Capital Total Realty Trust Inc., a Maryland corporation, its general partner
          By:  

 

            Name:
            Title:

 

USActive 19772222.15   3  


Appendix 1 to Transaction Request

List of Eligible Assets requested to be purchased, to include, as applicable and as available:

 

(a) Transaction Name
(b) Seller Loan Number
(c) Class (Whole Loan or Senior Interest)
(d) Lien Type
(e) Property Type
(f) Property Street Address
(g) Property City, State, County, Zip Code
(h) Appraised Value
(i) Appraisal Firm
(j) Appraisal Date
(k) Original Loan Balance
(l) Seller Origination Balance
(m) Current Loan Balance
(n) Amortization
(o) Balloon Amount
(p) [Current] Interest Rate
(q) Spread
(r) Index (Ex: 1 mo LIBOR; [    ]%)
(s) Next Interest Change Date
(t) Next Payment Change Date
(u) Interest Rate cap
(v) Current Principal and Interest
(w) Note Date
(x) First Payment Due Date to Seller
(y) Initial Maturity Date
(z) Extended Maturity Date
(aa) Current delinquency status
(bb) Times 30 days or more Delinquent since origination
(cc) Payment Type
(dd) Payment Frequency
(ee) Rate Change Frequency
(ff) Original Principal and Interest
(gg) Sponsor Name (including first name, if any)
(hh) Borrowing Entity Name
(ii) Underlying Borrower Name
(jj) Open to Prepayment?
(kk) Prepayment Penalty
(ll) Current Senior Liens
(mm) Current Senior Lender

 

USActive 19772222.15   4  


(nn) DSCR on Prior/Senior Liens
(oo) Term of Senior Liens
(pp) Interest Rate of Senior Loans
(qq) Current DSCR on combined debt
(rr) Current LTV, including senior liens
(ss) Exceptions (if any)

[Description of any exceptions to representations and warranties to be made by Seller in the related Confirmation]

 

USActive 19772222.15   5  


EXHIBIT B

FORM OF CONFIRMATION

[    ] [    ], 20[    ]

Wells Fargo Bank, National Association

One Wachovia Center

301 South College Street

MAC D1053-160, 16 th Floor

Charlotte, North Carolina 28288

Attention:

 

  Re: Master Repurchase and Securities Contract dated as of June 25,

2010, (the “ Agreement ”) between TRT Lending Subsidiary I, LLC

(“ Seller ”) and Wells Fargo Bank, National Association (“ Buyer ”)

Ladies and Gentlemen:

This is a Confirmation (as this and other terms used but not defined herein are defined in the Agreement) executed and delivered by Seller and Buyer pursuant to Section 3.01 of the Agreement. Seller and Buyer hereby confirm and agree that as of the Purchase Date and upon the other terms specified below, Seller shall sell and assign to Buyer, and Buyer shall purchase from Seller, all of Seller’s right, title and interest in, to and under the Purchased Assets listed in Appendix 1 hereto.

 

Purchased Asset (including Class and

Underlying Mortgaged Property):

   _____________________
Market Value:    $                                                      
Applicable Percentage:                 %
Maximum Applicable Percentage:                 %
Excess Funding Capacity:    [$                                           ]
(as of the date of this Transaction Request, if any)   
Whole Loan/Senior Interest Documents:    As described in Appendix 1 hereto
Purchase Date:    [    ] [    ], 20[    ]
Purchase Price:    $                                                      

 

USActive 19772222.15   6  


Seller hereby certifies as follows, on and as of the above Purchase Date with respect to each Purchased Asset described in this Confirmation:

1. All of the conditions precedent in Article 6 of the Agreement (other than those which must be satisfied solely by Buyer) have been satisfied.

2. Except as specified in Appendix 1 hereto, Seller will make all of the representations and warranties contained in the Agreement (including Schedule 1 to the Agreement as applicable to the Class of such Asset).

 

Seller :
TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company

    By:    

 

TRT Lending Subsidiary I Holdco, LLC, a Delaware limited liability company, its sole member

 

By:

  TRT Lending LLC, a Delaware limited liability company, its sole member
    By:   DCTRT Securities Holdco LLC, a Delaware limited liability company, its sole member
      By:   Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member
        By:   Dividend Capital Total Realty Trust Inc., a Maryland corporation, its general partner
          By:  

 

            Name:
            Title:

 

USActive 19772222.15   7  


Buyer :
Acknowledged and Agreed:
Wells Fargo Bank, National Association
By:  

 

  Name:
  Title:

 

USActive 19772222.15   8  


Appendix 1 to Confirmation

List of Purchased Assets, including, as applicable and as available:

 

(a) Transaction Name
(b) Seller Loan Number
(c) Class (Whole Loan or Senior Interest)
(d) Lien Type
(e) Property Type
(f) Property Street Address
(g) Property City, State, County, Zip Code
(h) Appraised Value
(i) Appraisal Firm
(j) Appraisal Date
(k) Original Loan Balance
(l) Seller Origination Balance
(m) Current Loan Balance
(n) Amortization
(o) Balloon Amount
(p) [Current] Interest Rate
(q) Spread
(r) Index (Ex: 1 mo LIBOR; [    ]%)
(s) Next Interest Change Date
(t) Next Payment Change Date
(u) Interest Rate cap
(v) Current Principal and Interest
(w) Note Date
(x) First Payment Due Date to Seller
(y) Initial Maturity Date
(z) Extended Maturity Date
(aa) Current delinquency status
(bb) Times 30 days or more Delinquent since origination
(cc) Payment Type
(dd) Payment Frequency
(ee) Rate Change Frequency
(ff) Original Principal and Interest
(gg) Sponsor Name (including first name, if any)
(hh) Borrowing Entity Name
(ii) Underlying Borrower Name
(jj) Open to Prepayment?
(kk) Prepayment Penalty
(ll) Current Senior Liens
(mm) Current Senior Lender
(nn) DSCR on Prior/Senior Liens

 

USActive 19772222.15   9  


(oo) Term of Senior Liens
(pp) Interest Rate of Senior Loans
(qq) Current DSCR on combined debt
(rr) Current LTV, including senior liens
(ss) Exceptions (if any)

 

USActive 19772222.15   10  


EXHIBIT C

FORM OF GUARANTEE AGREEMENT

See Tab 4.

 

USActive 19772222.15   11  


EXHIBIT D

FORM OF IRREVOCABLE REDIRECTION NOTICE

[        ] [    ], 20[    ]

[Underlying Obligor] or

[Third Party Servicer]

[address]

 

  Re: Master Repurchase and Securities Contract dated as of June 25,

2010, (the “ Agreement ”) between TRT Lending Subsidiary I, LLC

(“ Seller ”) and Wells Fargo Bank, National Association (“ Buyer ”)

Ladies and Gentlemen:

Wells Fargo Bank, National Association (“ Servicer ”) is servicing certain mortgage loans for Buyer pursuant to one or more Servicing Agreements between Servicer, Buyer and Seller. Pursuant to the Agreement, you are hereby notified that Seller has granted a security interest to Buyer in certain Assets which are serviced by Servicer as set forth herein.

Notwithstanding any contrary information or direction which may have been delivered to you by Seller, you are hereby directed to remit the principal and interest, any escrow or reserve amounts, and other amounts due under the related loan documents, when due to Servicer by sending such amounts to Wells Fargo Bank, National Association at [insert wire instructions] . Those funds shall be held by Servicer for the benefit of Buyer (the “ Servicing Agreement Account ”). You acknowledge that the Servicing Agreement Account is held for the benefit of Buyer pursuant to the Controlled Account Agreement, dated as of June 25, 2010 by and between Seller, Buyer and Wachovia Bank, National Association. Upon receipt of a notice of Event of Default from Buyer, you shall follow the instructions of Buyer with respect to the Purchased Assets, and shall deliver to Buyer any information with respect to the Purchased Assets reasonably requested by Buyer.

You hereby agree that upon the occurrence of an Event of Default, Buyer may terminate any Servicing Agreement which exists between Servicer and Seller in respect of any Purchased Assets and in any event transfer [transfer] [permit the transfer of] servicing of the Purchased Assets to Buyer or Buyer’s designee, at no cost or expense to Buyer, it being agreed that Seller will pay any and all fees required to terminate any Servicing Agreement and to effectuate the transfer of servicing to Buyer or the designee of Buyer.

Notwithstanding any contrary information or direction which may be delivered to you by Seller, you may conclusively rely on any information, direction or notice of an Event of Default delivered by Buyer.

 

USActive 19772222.15   12  


No provision of this letter may be amended, countermanded or otherwise modified without the prior written consent of Buyer. Buyer is an intended third party beneficiary of this letter.

Please acknowledge receipt and your agreement to the terms of this instruction letter by signing in the signature block below and forwarding an executed copy to Buyer promptly upon receipt. Any notices to Buyer should be delivered to the following address: One Wachovia Center, 301 South College Street, MAC D1053-053, 5th Floor, Charlotte, NC 28202; Attention: Karen Whittlesey; Telephone: (704) 374-7909; Facsimile: (704) 715-0066.

[remainder of page intentionally left blank]

 

USActive 19772222.15   13  


Very truly yours,

WELLS FARGO BANK, NATIONAL ASSOCIATION
By:  

 

  Name:
  Title:

 

  cc: Wells Fargo Bank, National Association

201 S. College St., 9 th Floor, NC 1075

Charlotte, North Carolina 28202

Attention: Lisa K. Traylor

 

USActive 19772222.15   14  


ACKNOWLEDGED AND AGREED TO:
TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company (“ Debtor ”)
  By:   TRT Lending Subsidiary I Holdco, LLC, a Delaware limited liability company, its sole member
    By:   TRT Lending, LLC, a Delaware limited liability company, its sole member
      By:   DCTRT Securities Holdco LLC, a Delaware limited liability company, its sole member
        By:   Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member
          By:   Dividend Capital Total Realty Trust Inc., a Maryland corporation, its general partner
            By:  

 

              Name:
              Title:

 

ACKNOWLEDGED AND AGREED TO:
[UNDERLYING OBLIGOR] [THIRD PARTY SERVICER]
By:  

 

  Name:
  Title

 

USActive 19772222.15   15  


EXHIBIT E

FORM OF CUSTODIAL AGREEMENT

See Tab 2.

 

USActive 19772222.15   16  


EXHIBIT F

FORM OF POWER OF ATTORNEY

Know All Men by These Presents, that TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company (“ Seller ”), does hereby appoint WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“ Buyer ”), its attorney-in-fact to act in Seller’s name, place and stead in any way that Seller could do with respect to the enforcement of Seller’s rights under the Purchased Assets purchased by Buyer pursuant to the Master Repurchase and Securities Contract, dated as of June 25, 2010, between Buyer and Seller (the “ Repurchase Agreement ”), and to take such other steps as may be necessary and desirable to enforce Buyer’s rights against such Purchased Assets to the extent that Seller is permitted by law to act through an agent.

TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY.

[SIGNATURE PAGE FOLLOWS]

 

USActive 19772222.15   17  


IN WITNESS WHEREOF Seller has caused this Power of Attorney to be executed as a deed on the date first written above.

 

TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company
 

By:

  TRT Lending Subsidiary I Holdco, LLC, a Delaware limited liability company, its sole member
    By:   TRT Lending LLC, a Delaware limited liability company, its sole member
      By:   DCTRT Securities Holdco LLC, a Delaware limited liability company, its sole member
        By:   Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member
          By:   Dividend Capital Total Realty Trust Inc., a Maryland corporation, its general partner
            By:  

 

              Name:
              Title:

 

USActive 19772222.15   18  


EXHIBIT G

FORM OF PURCHASED ASSET DATA SUMMARY

 

USActive 19772222.15   19  


EXHIBIT H

FORM OF ASSIGNMENT AND ACCEPTANCE

1. Reference is made to the Master Repurchase and Securities Contract dated as of June 25, 2010 (the “ Agreement ”) between TRT Lending Subsidiary I, LLC (“ Seller ”) and Wells Fargo Bank, National Association (“ Buyer ”).

2. Wells Fargo Bank, National Association (“ Assignor ”) and                      (“ Assignee ”) hereby agree as follows:

3. Assignor hereby sells and assigns and delegates, without recourse except as to the representations and warranties made by it herein, to Assignee, and Assignee hereby purchases and assumes from Assignor, an interest in and to Assignor’s rights and obligations under the Agreement as of the Effective Date (as hereinafter defined) equal to the percentage interest specified on Schedule I hereto of all outstanding rights and obligations under the Repurchase Agreement (collectively, the “ Assigned Interest ”).

4. Assignor:

(a) hereby represents and warrants that its name set forth on Schedule I hereto is its legal name, that it is the legal and beneficial owner of the Assigned Interest and that such Assigned Interest is free and clear of any adverse claim;

(b) other than as provided herein, makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Agreement or any of the other Repurchase Documents, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, the Repurchase Agreement or any of the other Repurchase Documents, or any other instrument or document furnished pursuant thereto; and

(c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of Seller or the performance or observance by the Seller of any of its Obligations.

5. Assignee:

(a) confirms that it has received a copy of the Agreement, the other Repurchase Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance;

(b) agrees that it will, independently and without reliance upon Buyer, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Repurchase Agreement;

 

USActive 19772222.15   20  


(c) represents and warrants that its name set forth on Schedule I hereto is its legal name;

(d) agrees that, from and after the Effective Date, it will be bound by the provisions of the Agreement and the other Repurchase Documents and, to the extent of the Assigned Interest, it will perform in accordance with their terms all of the obligations that by the terms of the Repurchase Agreement are required to be performed by it; and

(e) The effective date for this Assignment and Acceptance (the “ Effective Date ”) shall be the date specified on Schedule I hereto.

6. As of the Effective Date, (a) Assignee shall be a party to the Agreement and, to the extent of the Assigned Interest, shall have the rights and obligations of Buyer thereunder and (b) Assignor shall, to the extent that any rights and obligations under the Agreement have been assigned and delegated by it pursuant to this Assignment and Acceptance, relinquish its rights (other than provisions of the Agreement and the other Repurchase Documents that are specified under the terms thereof to survive the payment in full of the Obligations) and be released from its obligations under the Agreement (and, if this Assignment and Acceptance covers all or the remaining rights and obligations of such Assignor under the Agreement, such Assignor shall cease to be a party thereto); provided, however, that this assignment shall not release Assignor from any liabilities owing to Seller prior to such assignment unless expressly released by Seller.

7. As of the Effective Date [check one]:

¨ Assignee is not a Prohibited Entity; no consent of Seller is necessary.

¨ Assignee is a Prohibited Entity; Seller has consented to this Assignment and Acceptance as contemplated under the Agreement.

8. This Assignment and Acceptance shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

9. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule I hereto in Portable Document Format (PDF) or by telecopier or facsimile transmission shall be effective as delivery of an originally executed counterpart of this Assignment and Acceptance.

IN WITNESS WHEREOF , each of Assignor and Assignee have caused Schedule I hereto to be executed by their respective officers thereunto duly authorized, as of the date specified thereon.

 

USActive 19772222.15   21  


Schedule I

to

ASSIGNMENT AND ACCEPTANCE

Assignor: Wells Fargo Bank, National Association

Assignee:

Effective Date:                   , 201     

 

Assigned Purchase Price

   $             

Aggregate Purchase Price

   $             

Assigned Buyer Percentage

     %

Outstanding Aggregate Purchase Amount

   $             

Outstanding Buyer Purchase Amount

   $             

 

Assignor :
Wells Fargo Bank, National Association, as Assignor

[Type or print legal name of Assignor]

By  

 

    Name:    
    Title:    

Dated:                   , 201     

 

USActive 19772222.15   22  


Assignee :

 

 

  , as
        Assignee  
        [Type or print legal name of Assignee]  
 
  By  

 

 
    Name:  
    Title:  
  Dated:                   ,         
  Address for Notices:

 

USActive 19772222.15   23  


EXHIBIT I

FORM OF CLOSING CERTIFICATE

See Tab 12.

 

USActive 19772222.15   24  


EXHIBIT J

FORM OF COMPLIANCE CERTIFICATE

[            ] [    ], 20[    ]

Wells Fargo Bank, National Association

One Wachovia Center

301 South College Street

MAC D1053-160, 5th Floor

Charlotte, NC 28202

Attention: Lee Goins

 

  Re: Master Repurchase and Securities Contract dated as of June 25,

2010, (the “ Agreement ”) between TRT Lending Subsidiary I, LLC

(“ Seller ”) and Wells Fargo Bank, National Association (“ Buyer ”)

This Compliance Certificate is furnished pursuant to the above Agreement. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the respective meanings ascribed thereto in the Agreement.

THE UNDERSIGNED HEREBY CERTIFIES, IN MY CAPACITY AS CHIEF FINANCIAL OFFICER OF PARENT AND NOT IN MY INDIVIDUAL CAPACITY, THAT:

(a) I am a duly elected Responsible Officer of Parent.

To the best of my knowledge after due inquiry, all of the financial statements, calculations and other information set forth in this Compliance Certificate, including in any exhibit or other attachment hereto, are true, complete and correct in all material respects as of the date hereof.

I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions, assets, positions, properties, investments and financial condition of Parent during the accounting period covered by the financial statements attached hereto (or most recently delivered to Buyer if none are attached).

The examinations described in the preceding paragraph did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate (including after giving effect to any pending Transactions requested to be entered into), except as set forth below.

 

USActive 19772222.15   25  


Attached as Exhibit 1 hereto are the calculations demonstrating that, after giving effect to any pending Transactions requested to be entered into, based on Seller’s then-current determination of Market Value, no Margin Deficit shall then exist.

Attached as Exhibit 2 hereto are the financial statements required to be delivered pursuant to Section 8.09 of the Agreement (unless none are required to be delivered as of the date of this Compliance Certificate), which financial statements, to the best of my knowledge after due inquiry, fairly and accurately present in all material respects, the consolidated financial condition and operations of Parent and the consolidated results of their operations as of the date or with respect to the period therein specified, determined in accordance with GAAP.

Attached as Exhibit 3 hereto are the calculations demonstrating compliance with the financial covenants set forth in Section 8.07(b) of the Agreement and Section 9 of the Guarantee Agreement.

Attached as Exhibit 4 hereto is a description of all interests of Affiliates of Seller in any Underlying Mortgaged Property (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to, or pari passu with, a Purchased Asset in right of payment or priority).

Attached as Exhibit 5 hereto, if changed from the version attached to the immediately preceding Compliance Certificate, is a copy of Seller’s current organizational chart (showing all Affiliates of Seller).

Attached as Exhibit 6 hereto is a description of the tests and the relevant calculations, as of [              ], demonstrating that neither Seller, Guarantor nor any Relevant Affiliate is required to register as an “investment company” (as defined in the 40 Act). To the best of my knowledge, as of the date hereof, no event has occurred that would cause Seller, Guarantor or any Relevant Affiliate to be required to be registered as an “investment company” (as defined in the 40 Act).

To the best of my knowledge, Seller has, during the period since the delivery of the immediately preceding Compliance Certificate, observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects every condition, contained in the Agreement and the other Repurchase Documents to be observed, performed or satisfied by it, and I have no knowledge of the occurrence during such period, or present existence, of any condition or event which constitutes an Event of Default or Default (including after giving effect to any pending Transactions requested to be entered into), except as set forth below.

Described below are the exceptions, if any, to the above paragraph, setting forth in detail the nature of the condition or event, the period during which it has existed and the action which has been taken, is being taken or will be taken with respect to such condition or event:

 

 

 

 

 

 

 

USActive 19772222.15   26  


The foregoing certifications, together with the financial statements, updates, reports, materials, calculations and other information set forth in any exhibit or other attachment hereto, or otherwise covered by this Compliance Certificate, are made and delivered as of              , 200      .

 

 

Name:

Title:

Exhibit 1 : Margin Deficit Calculations

Exhibit 2 : Financial Statements

Exhibit 3 : Financial Covenant Compliance Calculations

Exhibit 4 : Affiliate Interests in Underlying Mortgaged Property

Exhibit 5 : Organizational Chart

Exhibit 6 : 40 Act Calculation

 

USActive 19772222.15   27  


EXHIBIT K

FORM OF ACCOUNT CONTROL AGREEMENT

See Tab 21.

 

USActive 19772222.15   28  


EXHIBIT L

FORM OF SERVICING AND SUB-SERVICING AGREEMENT

See Tab 16.

 

USActive 19772222.15   29  


EXHIBIT M

FORM OF CONTROLLED ACCOUNT AGREEMENT

See Tab 5.

 

USActive 19772222.15    


EXHIBIT N

FORM OF OMNIBUS ASSIGNMENT

(Describe Purchased Asset)

OMNIBUS ASSIGNMENT, dated as of [              ] (this Assignment ), by and between TRT LENDING SUBSIDIARY I, LLC (“ Assignor ”) and WELLS FARGO BANK, NATIONAL ASSOCIATION ( Assignee ).

Reference is made to that certain Master Repurchase and Securities Contract, dated as of June 25, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “ Repurchase Agreement ”), by and between Assignor, as seller, and Assignee, as buyer. Capitalized terms used but not otherwise defined in this Assignment shall have the meanings given to them in the Repurchase Agreement.

This Assignment is being delivered pursuant to the Repurchase Agreement.

KNOW ALL MEN BY THESE PRESENTS, that in consideration of the sum of TEN DOLLARS ($10.00) lawful money of the United States and other good and valuable consideration to it in hand paid at or before the ensealing and delivery of these presents, including, without limitation, the Transaction entered into by Assignor and Assignee under the Repurchase Agreement in respect of the Purchased Asset described on Schedule A hereto (the “ Specified Asset ”), Assignor transferred and set over, without recourse and without covenant, representation or warranty in any respect (except as expressly provided for in the Repurchase Agreement), and by these presents does grant, bargain, sell, assign, transfer and set over unto Assignee without recourse and without covenant, representation or warranty in any respect (except as expressly provided for in the Repurchase Agreement), all of Assignor’s right, title and interest in, to and under the Specified Asset other than the Retained Interests; all instruments, agreements and other documents which evidence, describe, secure or in any way govern or otherwise affect the rights or obligations of the holder of the Specified Asset, including, without limitation, all of the loan documents set forth in Schedule A hereto (the “ Loan Documents ”); all collateral, certificates of deposit, letters of credit, demands, certificates, bank accounts, operating accounts, reserve accounts, escrow accounts and other accounts, opinions, financial statements of the Underlying Obligor and any guarantors and any other collateral related to the Specified Asset or the Loan Documents; all claims and choses in action related to the Specified Asset or the Loan Documents; and all of Assignor’s rights, title and interest in, to and under such claims and choses in action (collectively, the “ Assigned Interest ”).

 

USActive 19772222.15   -31-  


TO HAVE AND TO HOLD unto Assignee, its successors, and assigns forever.

Assignee joins in this Assignment solely to evidence its consent hereto.

This Assignment may be executed by one or more parties to this Assignment in any number of counterparts and all said counterparts taken together shall be deemed to constitute one and the same instrument.

[SIGNATURES FOLLOW]

 

USActive 19772222.15   -32-  


IN WITNESS WHEREOF, Assignor and Assignee have caused these presents to be duly executed as of the day and year first above written.

 

ASSIGNOR

TRT LENDING SUBSIDIARY I, LLC, a Delaware limited liability company

  By:  

TRT Lending Subsidiary I Holdco, LLC, a Delaware limited liability company, its sole member

    By:  

TRT Lending LLC, a Delaware limited liability company, its sole member

      By:  

DCTRT Securities Holdco LLC, a Delaware limited liability company, its sole member

        By:  

Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership, its sole member

          By:  

Dividend Capital Total Realty Trust Inc., a Maryland corporation, its general partner

            By:  

 

              Name:  
              Title:  

 

USActive 19772222.15    


ASSIGNEE

WELLS FARGO BANK, NATIONAL ASSOCIATION

By:  

 

  Name:
  Title:

 

USActive 19772222.15   -34-  


Schedule A

SPECIFIED ASSET

[Describe; Be sure to identify the Underlying Obligor]

LOAN DOCUMENTS

[List; Describe]

 

USActive 19772222.15   -35-  


EXHIBIT O

[RESPONSIBLE OFFICER’S CERTIFICATE]

[To be delivered to Buyer within 15 days of each calendar quarter]

 

Dividend Capital Total Realty Trust Inc.

518 Seventeenth Street, Suite 1700

Denver, Colorado 80202

Attention: President and General Counsel

[            ], 20[    ]

Wells Fargo Bank, National Association

One Wachovia Center

301 South College Street

MAC D1053-053, 5th Floor

Charlotte, North Carolina 28202

Attention: H. Lee Goins III

Re: REIT Status of Dividend Capital Total Realty Trust Inc.

Ladies and Gentlemen:

I am a Responsible Officer of Dividend Capital Total Realty Trust Inc., a Maryland corporation (“Dividend Capital Total Realty Trust Inc.”) and hereby certify in my capacity as                      of Dividend Capital Total Realty Trust, and not in my individual capacity, on behalf of Dividend Capital Total Realty Trust Inc. that as of the close of the previous calendar quarter the representations set forth in Section 7.16(a) through (e) of the Master Repurchase and Securities Contract dated June 25, 2010 between TRT Lending Subsidiary I, LLC and Wells Fargo Bank, National Association, are true in all material respects and I have attached here a spreadsheet providing back-up of these representations. All section numbers refer to Sections in, and all defined terms herein are defined in, the Master Repurchase and Securities Contract dated June 25, 2010 between TRT Lending Subsidiary I, LLC and Wells Fargo Bank, National Association.

 

USActive 19772222.15   -36-  


IN WITNESS WHEREOF, I have, on behalf of Dividend Capital Total Realty Trust Inc., signed this officer’s certificate as of this [    ] day of [    ], 20[    ].

 

Dividend Capital Total Realty Trust Inc.
BY:   /s/  

 

 

Name:    

 

Title:    

 

 

USActive 19772222.15   -37-  


ANNEX 1

BUYER’S LOCATION

Wells Fargo Bank, National Association

One Wachovia Center

301 South College Street

MAC D1053-053, 5th Floor

Charlotte, North Carolina 28202

Attention: H. Lee Goins III

SELLER’S LOCATION

TRT LENDING SUBSIDIARY I, LLC

c/o Dividend Capital Total Realty Trust Inc.

518 Seventeenth Street, Suite 1700

Denver, Colorado 80202

Attention: President and General Counsel

 

USActive 19772222.15   -38-  

Exhibit 31.1

Certification of Principal Executive Officer Pursuant to

Rule 13a-14(a), Under the Securities Exchange Act of 1934, As Amended

I, Guy M. Arnold, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Dividend Capital Total Realty Trust Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

/ S /     GUY M. ARNOLD

Name:   Guy M. Arnold
Title:   President

Date: August 13, 2010

Exhibit 31.2

Certification of Chief Financial Officer Pursuant to

Rule 13a-14(a), Under the Securities Exchange Act of 1934, As Amended

I, M. Kirk Scott, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Dividend Capital Total Realty Trust Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

/ S /    M. KIRK SCOTT

Name:   M. Kirk Scott
Title:   Chief Financial Officer and Treasurer

Date: August 13, 2010

Exhibit 32.1

Certification of Principal Executive Officer Pursuant to

18 U.S.C. Section 1350

I, Guy M. Arnold, as President of Dividend Capital Total Realty Trust Inc. certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that:

1. The Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2010 fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: August 13, 2010

 

 

/ S /    GUY M. ARNOLD

Name:   Guy M. Arnold
Title:   President

Exhibit 32.2

Certification of Chief Financial Officer Pursuant to

18 U.S.C. Section 1350

I, M. Kirk Scott, as Chief Financial Officer of Dividend Capital Total Realty Trust Inc. certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that:

1. The Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2010 fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: August 13, 2010

 

 

/ S /    M. KIRK SCOTT

Name:

  M. Kirk Scott

Title:

  Chief Financial Officer and Treasurer