EXHIBIT 2

PURCHASE AND SALE AGREEMENT


BY AND AMONG




GENERAL ELECTRIC CAPITAL CORPORATION


and Certain Affiliates


as Seller Parties,

and

BRE IMAGINATION HOLDCO LLC,

BRE IMAGINATION GERMANY I LLC

AND

BRE IMAGINATION GERMANY II LLC

as Purchaser

Dated April 10, 2015

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RECITALS:		1
ARTICLE I PURCHASE AND SALE		2
1.1	Purchase and Sale of Purchased Interests, Transferred Properties and Purchased Commercial Loans	2
1.2	Purchase Price	3
1.3	Payment of Estimated Initial Purchase Price and Estimated Deferred Purchase Price	6
1.4	Prorations, Calculations and Other Adjustments	6
1.5	Alternative Transactions.	15
1.6	Allocations. .	15
ARTICLE II INSPECTION AND TITLE MATTERS		16
2.1	Purchaser Parties' Inspections and Due Diligence	16
2.2	Due Diligence Indemnity	17
2.3	Title Matters	17
2.4	Potentially Excluded Equity Assets.	22
2.5	Potentially Excluded Purchased Commercial Loans.	23
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES		23
3.1	Organization, Power and Authority of the Seller Parties	23
3.2	Purchased Interests	24
3.3	Noncontravention; Consents	24
3.4	Capitalization, Subsidiaries and Joint Ventures	25
3.5	Existing Policies and Surveys; Ground Leases	26
3.6	Absence of Material Adverse Change	26
3.7	Litigation	26
3.8	Portfolio Tape	26
3.9	Tax Matters	27
3.10	Employees; Benefit Plans	29
3.11	No Condemnation	29
3.12	Environmental Matters	29
3.13	Rent Rolls	30
3.14	Purchased Commercial Loans.	30
3.15	Material Contracts	32
3.16	Financial Advisor	33
3.17	Insurance	33
3.18	Certain Payments	33
3.19	Compliance with Laws	33
3.20	Affiliate Transactions	33
3.21	Existing Loans	34
3.22	Compliance	34
3.23	LIMITATIONS ON REPRESENTATIONS AND WARRANTIES	34
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES		35
4.1	Organization, Power and Authority of the Purchaser	36

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4.2	Noncontravention; Consents	36
4.3	Financial Advisor	36
4.4	Litigation	36
4.5	Funding	37
4.6	Investment Representation	37
4.7	Solvency	37
4.8	Compliance	37
4.9	Canada Value Added Tax	38
4.10	No Other Representations and Warranties; No Reliance; Purchaser Parties Investigation	38
ARTICLE V COVENANTS		38
5.1	Conduct of the Business Pending Transfer	38
5.2	Commercially Reasonable Efforts	42
5.3	Public Announcements	44
5.4	Confidentiality	45
5.5	Transfer Taxes	45
5.6	Tax Treatment; Tax Returns	46
5.7	Real Property Taxes	48
5.8	Tax Elections.	49
5.9	Termination of Rights to GE Names and GE Marks.	49
5.10	Distributions..	50
5.11	Post-Closing Access	50
5.12	Mutual Release of the Other Parties	50
5.13	Certain State Disclosure Requirements	51
5.14	Resignations	51
5.15	Compliance with ROFRs and Pre-Emptive Rights	52
5.16	Employment Matters	52
5.17	Transition Services Arrangements	52
5.18	Financing Arrangements	52
5.19	Purchaser Party Designee.	53
5.20	Existing Loans.	53
5.21	Seller Financing.	54
5.22	Works Councils/Employee Representative Bodies	54
5.23	Commercial Loan Backlog	54
5.24	Loan Transfers	54
5.25	Excluded Asset Benefits	55
5.26	Certain Prohibited Transfers	55
5.27	Bulk Sales	55
5.28	Certain Insurance Matters.	55
5.29	Local Transfer Agreements	56
5.30	Certain Credit Support Arrangements	57
5.31	Certain Loan Documentation	57
ARTICLE VI OPTION ASSETS		58

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6.1	Option Assets	58
6.2	Exercise of Option	58
6.3	Option Unadjusted Asset Purchase Price Amounts	58
6.4	Effect of Option Exercise	58
6.5	Kick-Out Rights. .	58
ARTICLE VII DEFERRED ASSETS AND ROFR AND PRE-EMPTIVE RIGHTS		59
7.1	Deferred Assets	59
7.2	Effect of Deferring the Transfer of the Deferred Interests	60
7.3	ROFR and Pre-Emptive Right Assets	61
ARTICLE VIII CASUALTY AND CONDEMNATION		63
8.1	In General	63
8.2	Insurance and Condemnation Proceeds	63
8.3	Restoration Plans	63
ARTICLE IX CLOSING		63
9.1	Initial Closing	63
9.2	Conditions to each Party's Obligation to effect the Transactions	64
9.3	Conditions to Obligations of the Seller Parties to the Initial Closing	65
9.4	Conditions to Obligations of Purchaser Parties to the Initial Closing	66
9.5	Deferred Closing	67
9.6	Conditions to Obligations of the Seller Parties to the Deferred Closing	67
9.7	Conditions to Obligations of the Purchaser Parties to the Deferred Closing	67
9.8	Non-United States Properties and Purchased Interests..	68
ARTICLE X TERMINATION; DEFAULT AND REMEDIES		68
10.1	Termination	68
10.2	Effect of Termination	69
10.3	Defaults and Remedies	69
10.4	Termination with respect to Deferred Closing	70
10.5	Termination Fee	71
ARTICLE XI SURVIVAL; INDEMNIFICATION		72
11.1	Survival of Representations and Warranties	72
11.2	Indemnification by the Seller Parties	72
11.3	Indemnification by the Purchaser Parties	73
11.4	Character of Indemnity Payments	73
11.5	Notice and Resolution of Claims	73
11.6	Limitations on Liability	75
11.7	Exclusive Remedy; Nature of Representations and Warranties	78
ARTICLE XII GENERAL PROVISIONS		78
12.1	Amendment	78
12.2	Extension; Waiver	78

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12.3	Representative	78
12.4	Notices	79
12.5	Interpretation	80
12.6	Counterparts	80
12.7	Entire Agreement; No Third-Party Beneficiaries	80
12.8	Governing Law	80
12.9	Assignment; Binding Agreement	80
12.10	Enforcement	81
12.11	Severability	82
12.12	Time is of the Essence	82
12.13	Expenses	82
12.14	Schedule References and Sections	82
12.15	Joint and Several Liability; Post-Closing Rights; Joint Action	83
12.16	Effect of Pre-Closing Actions	83
12.17	Further Assurances	83
12.18	Schedule 5.5(b)	83

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Exhibit A	-	Definitions
Exhibit B	-	Employment Matters
Exhibit C	-	Purchased Interest Assignment and Assumption Agreement
Exhibit D	-	Lease Assignment Agreement
Exhibit E	-	Purchased Commercial Loan Assignment and Assumption Agreement

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PURCHASE AND SALE AGREEMENT

This PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of April 10, 2015, is entered into by and among General Electric Capital Corporation, a Delaware corporation ("Seller" and, together with the Seller Designees permitted pursuant to this Agreement, the "Seller Parties"), on the one hand, and BRE Imagination Holdco LLC, a Delaware limited liability company, BRE Imagination Germany I LLC, a Delaware limited liability company and BRE Imagination Germany II LLC, a Delaware limited liability company (collectively, "Purchaser" and together with the Purchaser Party Designees permitted pursuant to this Agreement, the "Purchaser Parties"), on the other hand.  Each of the Seller Parties and the Purchaser Parties shall be referred to in this Agreement as a "Party", and collectively as the "Parties".  Capitalized terms used in this Agreement have the meanings specified in Exhibit A to, or elsewhere in, this Agreement.

RECITALS:

A.

The Seller Parties desire to sell, transfer, convey, assign and deliver to the applicable Purchaser Party (or a Purchaser Party Designee permitted by this Agreement): (i) the Interests (the "Purchased Interests") in each of the entities set forth on Schedule 1 (as such Schedule 1 may be amended in accordance with this Agreement, each such entity, a "Purchased Entity"), (ii) all of the Seller Parties' right, title and interest in each of the properties described on Schedule 2 (as such Schedule 2 may be amended in accordance with this Agreement) (together with the Property-Related Interests related to each such property, each a "Transferred Property" and, collectively, the "Transferred Properties" and together with the Underlying Properties, collectively, the "Properties"), and (iii) each of the Commercial Loans set forth on the Signing Portfolio Tape (as such Signing Portfolio Tape may be amended in accordance with this Agreement, collectively, the "Purchased Commercial Loans"), together with the Commercial Loan-Related Assets, in each case, in accordance with the terms and conditions set forth in this Agreement.  For purposes of this Agreement, "Equity Assets" shall mean the collective reference to the Purchased Interests and the Transferred Properties.

B.	The Purchaser Parties desire to purchase and acquire from the Seller Parties the Purchased Interests, the Transferred Properties and the Purchased Commercial Loans, in each case, in accordance with the terms and conditions set forth in this Agreement.

C.

Concurrently with the execution hereof, certain Affiliates of the Purchaser Parties have executed and delivered to certain Affiliates of the Seller Parties doing business in the Republic of France a letter agreement in which such Affiliates of the Purchaser Parties irrevocably offer to purchase certain assets of such Affiliates of the Seller Parties (the "Irrevocable Offer").   In addition, on the date hereof, certain Affiliates of the Purchaser Parties have delivered to certain Affiliates of the Seller Parties a counterpart signature page to an accession and amendment agreement to this Agreement (the "French Accession and Amendment Agreement") pursuant to which, upon effectiveness, certain terms and conditions of this Agreement would be amended and supplemented as set forth in the French Accession and Amendment Agreement. In the event that such Affiliates of the Seller Parties determine to accept the Irrevocable Offer, then such Affiliates of the Seller Parties will deliver a signed counterpart of the French Accession and Amendment Agreement to such Affiliates of the Purchaser Parties in accordance with the terms and conditions of the Irrevocable Offer.

D.	Concurrently with the execution hereof, as an inducement for the Seller Parties to enter into this Agreement, the Guarantor has executed and delivered the Guarantee to Seller (on behalf of the Seller Parties).

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NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE I

PURCHASE AND SALE

 

 

 

 

 

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making such representation on behalf of the applicable Affiliates of Seller Party that directly own such Purchased Interest, Transferred Property or Purchased Commercial Loan making such representation. Seller agrees to cause the Transfer of each Transferred Property, Purchased Interest or Purchased Commercial Loan to the Purchaser Parties in accordance with the terms and subject to the conditions of this Agreement.

(i)	the sum of the Unadjusted Asset Purchase Price Amounts with respect to each of the Purchased Interests and Transferred Properties Transferred at the applicable Closing, plus or minus,

(ii)

to the extent applicable, with respect to any Purchased Interests or any Transferred Properties Transferred at such Closing, the net amount of the Proration Items and other adjustments provided for pursuant to Section 1.4 and this Section 1.2 as set forth on the applicable Initial Closing Statement or the applicable Deferred Closing Statement (the applicable amount payable at the Initial Closing with respect to any Transferred Properties and any Purchased Interests, the "Estimated Initial Equity Purchase Price"; and the applicable amount payable at any Deferred Closing with respect to any Transferred Properties and any Purchased Interests, the "Estimated Deferred Equity Purchase Price").  Notwithstanding the foregoing, the Unadjusted Purchase Price with respect to those certain Purchased Interests set forth on Schedule 1 to this Agreement relating to the Underlying Properties and listed as the Martinez Cogen Property, Petrarca and Artemis shall be equal to the Unadjusted Asset Purchase Price for each Purchased Interest set forth on Schedule 1, without any further adjustments pursuant to Section 1.4 of this Agreement.

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 respect to any Transferred Purchased Commercial Loans, the "Estimated Initial Debt Purchase Price"; and the applicable amount payable at any Deferred Closing with respect to any Transferred Purchased Commercial Loans, the "Estimated Deferred Debt Purchase Price"). The procedures relating to the payment of the purchase price for each Purchased Commercial Loan shall be in accordance with the applicable provisions of Section 1.4. At each applicable Closing, without duplication, the portion of the Unadjusted Loan Purchase Price payable to the Seller Parties with respect to the applicable Purchased Commercial Loans shall be adjusted on the applicable Closing Date as follows:

(i)

Fully Prepaid Commercial Loans. If any Purchased Commercial Loans have been repaid or prepaid in full prior to being Transferred to a Purchaser Party, such Purchased Commercial Loans will not be Transferred to any Purchaser Party (a "Fully Prepaid Commercial Loan"), shall be removed from the applicable Portfolio Tapes and the Unadjusted Purchase Price shall be reduced by the Unadjusted Loan Purchase Price with respect to each such Fully Prepaid Commercial Loan.  Additionally, the Purchaser Parties shall be entitled to a credit on the applicable Closing Unpaid Principal Balance Statement with respect to such Fully Prepaid Commercial Loan in an amount equal to the Applicable Prepayment Reduction Amount, if any and   in the event that no further Closings are expected with respect to Purchased Commercial Loans, such Applicable Prepayment Reduction Amount, if any, shall be paid by wire transfer of the applicable currency to the account designated by the applicable Purchaser Party within ten (10) Business Days of the earlier to occur of the date such Purchased Commercial Loan becomes a Fully Prepaid Commercial Loan or the date it is determined by the Parties acting reasonably there will be no further Closings with respect to Purchased Commercial Loans.  Notwithstanding the foregoing, if any Purchased Commercial Loans with an Unadjusted Loan Purchase Price that is less than the Unpaid Principal Balance of such Purchased Commercial Loan is paid or repaid in full prior to being Transferred to a Purchaser Party, then in lieu of receiving a credit   of the Applicable Prepayment Adjustment Amount, the Purchaser Parties shall receive a credit in the amount equal to the sum of (x) the principal repayment or prepayment in excess of the Unadjusted Loan Purchase Price, and (y) all Commercial Loan Prepayment Fees.

(ii)

Partially Prepaid Commercial Loans.  If any Purchased Commercial Loans have been repaid or prepaid in part prior to being Transferred to a Purchaser Party, the Unadjusted Loan Purchase Price in respect of each such partially prepaid Purchased Commercial Loan shall be reduced by an amount equal to the product of (A) the difference between the Unpaid Principal Balance of the Purchased Commercial Loan reflected on the Signing Portfolio Tape and the Unpaid Principal Balance of the Purchased Commercial Loan reflected on the applicable Closing Unpaid Principal Balance Statement, and (B) the Loan Portfolio Percentage Premium.  Additionally, the Purchaser Parties shall be entitled to a credit on the applicable Closing Unpaid Principal Balance Statement with respect to such partially prepaid Purchased Commercial Loan in an amount equal to the Applicable Prepayment Reduction Amount in connection with such prepayment, if any.

(iii)

Accrued Interest; Default Interest; Late Charges.  The Seller Parties shall receive a credit at the applicable Closing of each Purchased Commercial Loan in an amount equal to all accrued and unpaid basic interest (to the extent currently payable) from the beginning of the month (or other periods) through the Adjustment Time to the applicable Adjustment Time, provided that such amount shall only be payable if no default or event of default exists as of such Adjustment Time; provided further, that the applicable Purchaser Party shall be entitled to (A) all accrued and unpaid interest (including any default interest) from and after the Adjustment Time, and (B) all default interest on each Purchased Commercial Loan that is Transferred to a Purchaser Party at such Closing.  The Seller Parties shall not receive any credit with respect to any accrued default interest or late charges with respect to any Purchased Commercial Loan.

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(iv)

Reserves and Deposits.  With respect to each applicable Closing at which any Purchased Commercial Loan is Transferred to the Purchaser Parties, the Seller Parties or the applicable Purchased Entities shall deliver or cause to be delivered to the Purchaser Parties all funds in reserve and deposit accounts made by or on behalf of an Obligor or which are security for the applicable Purchased Commercial Loan being Transferred and are held by or on behalf of any Seller Party.

(v)

Letters of Credit.  With respect to each applicable Closing at which any Purchased Commercial Loan is Transferred to the Purchaser Parties, the Seller Parties shall deliver or cause to be delivered to the Purchaser Parties all Commercial Loan-Related Assets, including, all deposits and credit support received from the related Obligors or as security for the applicable Purchased Commercial Loan in the form of bonds or letters of credit being held by or on behalf of the Seller Parties, at Seller Parties' cost (including the payment of any third party transfer fees and expenses).  If any of the letters of credit included in the Commercial Loan-Related Assets are not transferable, the Seller Parties shall request and use Commercially Reasonable Efforts, following the Transfer of the applicable Purchased Commercial Loan to the Purchaser Parties, the related Obligors to cause new letters of credit to be issued in favor of applicable Purchaser Parties in replacement thereof and shall cooperate with Purchaser Parties in connection with having such new letters of credit issued by on behalf of such Obligors in the name of Purchaser Parties, with all costs and expenses of the replacement to be paid for by the Seller Parties or the applicable Purchased Entities (if prior to its Transfer hereunder).

(vi)

Origination/Commitment Fees. With respect to each Closing at which a Designated Backlog Asset is Transferred to the Purchaser Parties, the Seller Parties shall provide the Purchaser Parties with a credit at such Closing equal to 50% of all Origination Fees collected with respect to such Designated Backlog Asset.

(vii)

Prepayment Notice in Advance of Closing.  With respect to any Purchased Commercial Loan where the Loan Portfolio Percentage Premium is greater than 100% for which a notice of full or partial prepayment is issued prior to the Closing Date, no Loan Portfolio Percentage Premium for the amount being prepaid shall be payable for any purposes under this Agreement in respect of (A) any Purchased Commercial Loan to be fully prepaid, and (B) the portion of any Purchased Commercial Loan that will be partially prepaid.

(viii)

Agency Fees.  All Agency Fees payable to the Seller Parties or an Affiliate of Seller shall be prorated as of the Adjustment Time with the Purchaser Parties receiving a credit for all Agency Fees collected by or on behalf of the Seller Parties relating to periods from and after the Adjustment Time.

(ix)

Receipt of Loan Payments.  Amounts received by the Seller Parties from  the applicable Obligor, as security for or in payment of any Purchased Commercial Loan from and after the applicable Closing Date on which the related Purchased Commercial Loan was Transferred with respect to which Purchaser Parties are entitled, shall be received by the Seller Parties, as agent, in trust for and on behalf of Purchaser Parties and the Seller Parties shall pay such amounts over to Purchaser Parties promptly, together with such reasonable information, to the extent known, as to the source and classification of such payments, including any invoice relating thereto. Amounts received by the Purchaser Parties from the applicable Obligor, as security for or in payment of any Purchased Commercial Loan from and after the applicable Closing Date on which the related Purchased Commercial Loan was Transferred with respect to which the Seller Parties are entitled, shall be received by the Purchaser Parties, as agent, in trust for and on behalf of the Seller Parties and Purchaser Parties shall pay such amounts over to the Seller Parties promptly, together with such reasonable information, to

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  the extent known, as to the source and classification of such payments, including any invoice relating thereto.

 

 

  

 

 

(i)

All prorations, calculations and other adjustments of the items described in this Section 1.4 shall be made at the applicable Closing based on the applicable Closing Statement prepared in accordance with this Section 1.4.  As set forth in Section 1.2(b) and Section 1.2(c), the net amount of credits to the Purchaser Parties and the Seller Parties for Proration Items, as reflected on the applicable Closing Statement, shall result in an increase or decrease of the Unadjusted Purchase Price.

(ii)

Except as otherwise set forth herein, (A) all items to be prorated and other adjustments to be made, as applicable, pursuant to Sections 1.2(b) and 1.2(c) and Section 1.4 (the "Proration Items") and (B) all calculations to be made pursuant to Sections 1.2(b) and 1.2(c) and this Section 1.4 shall be made as of 11:59 p.m. of the day immediately preceding the applicable Closing Date (the "Adjustment Time") and the net amount thereof either shall be paid by the Purchaser Parties to the Seller Parties or credited to the Purchaser Parties, as the case may be, at the applicable Closing.  The Purchaser Parties shall be treated as the owner of the Purchased Interests, Transferred Properties or Purchased Commercial Loans, as applicable, Transferred at the applicable Closing, for amounts relating to periods beginning at and after the Adjustment Time applicable to such Closing. The Purchaser Parties and the Seller Parties acknowledge that, except as otherwise expressly provided herein, or elsewhere in the other agreements and documents contemplated hereunder, the purpose and intent as to prorations and adjustments is that the Seller Parties (or the applicable Purchased Entities) shall bear all expenses of ownership and operation of the Transferred Properties, the Purchased Interests and the Purchased

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Commercial Loans Transferred at the Closing, and shall receive the benefit of all income therefrom, accruing until the Adjustment Time applicable to such Closing and the Purchaser Parties shall bear all such expenses of ownership and operation of the Transferred Properties, the Purchased Interests and the Purchased Commercial Loans and receive the benefit of all income therefrom accruing after the applicable Adjustment Time.

(iii)

The Parties agree that any increase or decrease pursuant to this Section 1.4 shall be treated for all Tax purposes as an adjustment to the Unadjusted Purchase Price, unless otherwise required by Law (including by a determination of a Tax Authority that, under applicable Law, is not subject to further review or appeal).

(iv)	With respect to any Purchased Interests:

(A)

The purchase price with respect to any Purchased Interest Transferred at a Closing will be determined by first adjusting the Unadjusted Asset Purchase Price for each applicable Underlying Property owned by a Joint Venture on the applicable Closing Date pursuant to Section 1.4(a)(iv)(B) below and then calculating the distributions that would be made to the applicable Seller Party from a Hypothetical Sale.  For purposes hereof, a "Hypothetical Sale" means a transaction where (1) the applicable Underlying Property or Underlying Properties owned by a Joint Venture on the applicable Closing Date are sold at their Unadjusted Asset Purchase Prices, as adjusted pursuant to Section 1.4(a)(iv)(B) (without duplication), then (2) all applicable Underlying Property indebtedness, including any secured mortgage and mezzanine indebtedness, is paid at par and without any penalties, yield maintenance, breakage or other fees and charges, then (3) other liabilities which are due on a sale of the Underlying Properties in question are paid, including the payment of disposition fees and incentive or promote fees under any Joint Venture or Subsidiary of a Joint Venture, and then (4) the remaining net proceeds are distributed to the partners or members in accordance with the Venture Agreements.  For avoidance of doubt, fees which are incremental contingent fees, such as fees paid only if an Operating Partner is hired as a broker will not be debited in the calculation under this Section 1.4(a)(iv).

(B)	For each Closing for which a Purchased Interest is Transferred to a Purchaser Party, the Unadjusted Asset Purchase Price for the applicable Underlying Property or Underlying Properties that are the subject of the Transfer will be adjusted as follows:

(1)

The Unadjusted Asset Purchase Price will be increased by the amount of all reserves, deposits, loan escrows and other similar items held by or for the benefit of a Joint Venture or a Subsidiary of the Joint Venture and where the Purchaser, directly or indirectly, receives the benefit of the same as part of the transfer (collectively, "JV Reserve Items");

(2)	The Unadjusted Asset Purchase Prices shall be adjusted in accordance with Section 1.4(a)(iv)(C) and, to the extent not duplicative of Section 1.4(a)(iv)(C), the provisions of  Section 1.4(b) below; and

(3)	With respect to any Purchased Entity, the Unadjusted Asset Purchase Prices will be decreased by any Mandatory Removal Exceptions to the extent not cured by the Seller Parties prior to the applicable Closing.

(C)	The following additional prorations shall be applied (without duplication of the prorations set forth in Section 1.4(b) or the payments or credits made in Section 1.4(a)(iv), and without any adjustment for title matters) to the prorations made under Section 1.4(a)(iv)(B):

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(1)	Intracompany receivable/payable balances, if any, will be settled prior to Closing and neither Purchaser Parties nor Seller Parties shall be entitled to a credit or adjustment therefor;

(2)	The Parties acknowledge that franchise and similar taxes in the State of Texas ("Texas Franchise Taxes") are generally payable 12 to 18 months after the attributable tax year.  The Seller Parties will bear the burden for Texas Franchise Taxes for periods prior to Closing; and

(3)

Current assets and current liabilities will be identified, with (x) "current assets" which shall include only cash and cash equivalents, deposits, tenant security deposits, prepaid expenses, reserves and escrows (including, without limitation, for tax, insurance, debt service, capital improvements or replacements) but specifically excluding goodwill, secured indebtedness, the value of the land, improvements and equipment and unspent capital contributions not otherwise expressly adjusted pursuant to the provisions of this Agreement; and (y) "current liabilities" which shall include only accounts payable, accrued payroll, accrued expenses (including accrued Texas Franchise Taxes and if the actual accrued Texas Franchise Taxes are not yet determined, then an estimated accrued amount for periods prior to the Closing) and refundable tenant security deposits and obligations to refund therefor.

(D)

At the applicable Closing, the Parties will calculate the difference between the amount of the current assets less the amount of the current liabilities (the "Working Capital Figure").  The aggregate Unadjusted Asset Purchase Price attributable to the applicable Equity Entity will be increased by the amount of any positive Working Capital Figure and decreased by any negative Working Capital Figure so calculated.

(i)

Base or Fixed Rent.  With respect to each Property, base or fixed rent ("Fixed Rent") paid by any Tenant under the applicable Lease shall be prorated on an "if and when collected basis" as of the applicable Adjustment Time.  The Purchaser Parties shall receive a credit at the Closing for any base or fixed rent paid by a Tenant to the applicable Seller Party or Purchased Entity with respect to a Property for the rent period in which such Closing occurs in an amount equal to the rent paid for such rent period multiplied by a fraction, the numerator of which is the number of days from and including the applicable Closing Date through and including the last day of the rent period in which the applicable Closing occurs, and the denominator of which is the total number of days in the rent period in which the applicable Closing occurs.

(ii)

Percentage Rent.  With respect to each Property for which such rent is payable, payments of additional rent based upon the amount by which a designated percentage of any Tenant's business, including gross revenues, achieved during the applicable period for which such rent is due under the applicable Lease (the "Percentage Rent Period") exceeded base or fixed rent, breakpoint or some other standard (the "Percentage Rent"), if any, for any Percentage Rent Period in which the applicable Closing occurs shall be apportioned between the applicable Seller Party and the applicable Purchaser Party on an "if and when collected" basis, as of the Adjustment Time. The Purchaser Parties shall receive a credit at the applicable Closing for any Percentage Rent paid by a Tenant to the applicable Seller Party or Purchased Entity with respect to a Property for the rent period in which such Closing occurs in an amount equal to the rent paid for such rent period, multiplied by a fraction, the numerator of which is the number of days from and including the applicable Closing Date through and including the last day of the rent period in which the applicable Closing occurs, and the denominator of which is the total number of days in the rent period in which the applicable Closing occurs.

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(iii)

Additional Rent.

(A)

With respect to each Property, payments of rent and any other amounts, receipts or reimbursements (other than Fixed Rent and Percentage Rent), including any parking fees, management fees, service fees, operating expense payments, insurance payments and tax payments (the "Additional  Rent"), paid by any Tenant under the applicable Lease shall be prorated on an "if and when collected" basis, as of the applicable Adjustment Time.  The Purchaser Parties shall receive a credit at the applicable Closing for any Additional Rent paid by a Tenant to the applicable Seller Party or Purchased Entity with respect to a Property for the rent period in which such Closing occurs in an amount equal to the rent paid for such rent period, multiplied by a fraction, the numerator of which is the number of days from and including the applicable Closing Date through and including the last day of the rent period in which the applicable Closing occurs, and the denominator of which is the total number of days in the rent period in which the applicable Closing occurs.

(iv)	Percentage Rent and Additional Rent Reconciliation.

(A)

Notwithstanding Section 1.4(b)(ii) or (iii), any reconciliation with Tenants under Leases for Additional Rent or Percentage Rent with respect to the calendar year in which the applicable Closing for a Property occurs ("Closing Year Additional and Percentage Rent") shall be pursuant to this Section 1.4(b)(iv)(A).  Any such reconciliation shall be prepared or caused to be prepared by the Purchaser Parties in the time frames required by the applicable Lease.  The Purchaser Parties shall provide to the Seller Parties the calculation of the amount of any Closing Year Additional and Percentage Rent due from or to each Tenant and shall provide to the Seller Parties all reasonably requested documentation in connection therewith.  If any amount is due from any Tenant pursuant to such reconciliation, the Purchaser Parties shall invoice, or cause the applicable Equity Entity to invoice, such Tenant for any such Closing Year Additional and Percentage Rent in the invoice to be sent to such Tenant in the ordinary course.  The applicable Purchaser Party or Equity Entity shall pay to the Seller Parties the Seller Parties' share of such amount calculated as of the Adjustment Time.  If the amount of any Closing Year Additional and Percentage Rent collected exceeds the amount of Closing Year Additional and Percentage Rent payable by the Tenant under the terms of its Lease, then, the Seller Parties shall promptly pay to the Purchaser Parties the Seller Parties' share of such excess amounts calculated as of the Adjustment Time.

(B)

To the extent that any Tenant conducts an audit respecting rent or any other charges paid by the Tenant for any periods prior to the applicable Closing Date, the applicable Purchaser Party or Equity Entity and the Seller Parties shall cooperate in response to such audit and complying with all requirements under the applicable Leases (and at law or in equity) in connection therewith. If any Tenant becomes entitled to a refund of rent or any other charge with respect to a period prior to the Closing Date, any such refunds due to such Tenant (the "Pre-Closing Refunds") shall be borne by the Parties as adjusted in accordance with the Adjustment Time.

(v)

Delinquent Rent. With respect to each Property, any Fixed Rent, Additional Rent or Percentage Rent (collectively, "Rent") that shall not have been paid when due under any Lease as of the applicable Closing shall be referred to as "Delinquent Rent."  During the six (6) month period immediately following the applicable Closing Date with respect to the Transfer of the applicable Property, the Purchaser Parties shall cooperate with the Seller Parties after the applicable Closing Date to collect any Delinquent Rent without any obligation to engage a collection agency, sue any tenant or exercise any legal remedies under the applicable Lease or incur any expense over and above its own regular collection expenses.  Rent collected after a Closing Date from any tenant who owes delinquent Rent as of that Closing Date shall be applied (A) first, to the month in which the Closing occurs, (B) second, to any Rent

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due to Purchaser Parties for the period after the Closing Date, and (C) finally to Delinquent Rent with respect to the period prior to the Closing Date.  Non-Delinquent Rent for the period after the Closing collected by Seller Parties shall be promptly remitted to Purchaser Parties.

(vi)

Advance Rent Payments.  With respect to each Property, in the event that any Seller Party or Subsidiary or Joint Venture thereof (other than a Purchased Entity) shall have received or receives after closing payments of rent or other charges under any Lease that relates to a period beginning after the Adjustment Time, the applicable Purchaser Party will receive a credit for such amount of rent or other charges (or its appropriate share thereof in the case of a Joint Venture). Purchaser Parties shall be entitled to all Rent from and after the Adjustment Time.

(i)	If and to the extent that a Tenant with respect to any Property is obligated pursuant to a Lease to pay real property Taxes directly to the applicable Taxing Authority, there shall be no proration of such real property Taxes.

(ii)

Except to the extent paid as part of Additional Rent, if and to the extent that a Tenant with respect to any Property is obligated pursuant to the Lease to reimburse the applicable Seller Party or Purchased Entity or Subsidiary thereof for payments of real property Taxes made directly by such Seller Party or Purchased Entity or Subsidiary thereof to the Tax Authority and such Seller Party, Purchased Entity or Subsidiary has paid any such real property Taxes and has not, prior to the applicable Adjustment Time, received a reimbursement for such paid real property Taxes from a Tenant, then the Purchaser Parties shall (A) cooperate with the Seller Parties after the applicable closing date to collect any such Tax payments without any obligation to engage a collection agency, sue any tenant or exercise any legal remedies under the applicable Lease or incur any expense over and above its own regular collection expenses and (B) upon receipt thereof, pay to the Seller Parties an amount equal to such paid real property Taxes.

(iii)

If the Seller Party or Purchased Entity thereof maintains an impound or reserve account for payment of real property Taxes with respect to a Property using funds paid by the applicable Tenant pursuant to a Lease (a "Tax Impound Account"), (x) in the case of a Property other than an Underlying Property,  the Seller Party shall retain the funds in the Tax Impound Account at Closing and shall provide the Purchaser Parties a credit on the Closing Statement for the amount, and (y) in the case of any Underlying Property, the Purchased Entity shall retain the funds in the Tax Impound Account at Closing and the Purchaser Parties shall not receive a credit therefor at Closing.

(iv)

To the extent the real property Tax obligation in respect of any Lease is not set forth in Sections 1.4(d)(i), the Seller Parties shall pay, at or prior to the Closing, all real property Taxes for any Tax period or portion of a Tax period prior to the applicable Adjustment Time regardless of when payable, and the Purchaser Parties shall bear the economic burden of all real property Taxes for any Tax period or portion of a Tax period from and after the applicable Adjustment Time, and such real property Taxes shall be prorated as of the applicable Adjustment Time between the Seller Parties and the

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Purchaser Parties as otherwise provided in Section 1.4(a), which proration shall be determined by apportioning such real property Taxes ratably over the taxable year on a daily basis.  To the extent set forth in Section 5.7, all refunds of any real property Taxes paid by Seller Parties relating to Tax periods prior to Closing pursuant to the proration thereof (including refunds pursuant to Tax appeals pending at Closing) shall be for the account of Seller Parties and shall be paid over to Seller Parties to the extent received by a Purchaser Party or a Purchased Entity or an Affiliate of a Purchaser Party or a Purchased Entity.

(i)	all other operating expenses relating to the Properties (including professional fees, personal property taxes and business, professional, licensing and occupancy taxes);

(ii)	utilities;

(iii)

the Purchaser Parties shall receive a credit for an amount equal to the outstanding principal (plus any accrued but unpaid interest) relating to any Existing Loan that is not fully repaid prior to the applicable Closing; and

(iv)	the Seller Parties shall also receive a credit for any escrows held in connection with an Existing Loan Transferred to a Purchaser Party.

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(i)

The Seller Parties shall be responsible for all Leasing Costs relating to Leases or renewals, amendments, expansions and extensions of Leases entered into or which first become binding prior to March 31, 2015 or any Lease entered into after the date of this Agreement that has either not been approved by the Purchaser Parties or if such approval is not required, any Lease on terms that are not arms' length market terms (the "Sellers' Leasing Costs"). The Purchaser Parties shall be responsible for all Leasing Costs other than the Sellers' Leasing Costs (the "Buyer's Leasing Costs"). To the extent any Sellers' Leasing Costs have not been fully paid as of the Closing Date, the Purchaser Parties shall receive a credit at the Closing against the Unadjusted Asset Purchase Price in the amount of the balance of the Sellers' Leasing Costs remaining to be paid and the Purchaser Parties shall assume all obligations of the Seller Parties to pay the balance of the Sellers' Leasing Costs as to which the Seller Parties shall have received such credit and to perform the obligations associated with the same.

(ii)	With respect to any Existing Loan, the Seller Parties and the Purchaser Parties shall apportion as of the Closing Date any interest paid or due with respect to any period that includes the Closing.

(iii)

With respect to the Purchased Commercial Loans identified on Schedule 1.4(h)(iii), Purchaser shall receive a credit at the Closing equal to the amount as calculated by the product of the applicable percentage set forth on Schedule 1.4(h)(iii) and the Outstanding Principal Balance of such Purchased Commercial Loans, including with respect to any partial prepayments made following the date hereof through the applicable Closing Date.

(i)

Applicable Time Period.  Unless otherwise provided in this Agreement, the applicable Seller Parties will be charged and credited for the amounts of all of the Proration Items (other than Delinquent Rent and real property Taxes payable by the applicable Tenants) relating to the period up to and including the applicable Adjustment Time, and the applicable Purchaser Parties will be charged and credited for all of the Proration Items relating to the period after the applicable Adjustment Time.  Notwithstanding anything herein to the contrary, (A) all prorations and adjustments with respect to the Purchased Interests and Transferred Properties shall be made on the basis of the actual number of days of the applicable time period which shall have elapsed prior to the applicable Adjustment Time and based upon the actual number of days in the applicable time period and a three hundred sixty five (365) day year and (B) all prorations and adjustments with respect to the Purchased Commercial Loans shall be made on the basis of the actual number of days in the applicable time period and a three hundred sixty (360) day year.  All prorations and adjustments made pursuant to this Section 1.4 shall be made without duplication whatsoever.

(ii)	Closing Statements.  The Seller Parties shall prepare in good faith and deliver to the Purchaser Parties for its review and consultation, (x) with respect to each Property and Purchased

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Interest or Deferred Property and Deferred Purchased Interests, as applicable, a statement of estimated Proration Items  as of the applicable Adjustment Time on a property-by-property basis, and Purchased Entity basis to the extent applicable and (y) with respect to the Purchased Commercial Loans or Deferred Commercial Loans, as applicable, the applicable Closing Unpaid Principal Balance Statement, in each case, together with all relevant supporting documentation, to be submitted to the Purchaser Parties in draft form no less than three (3) Business Days before the applicable Closing Date to be updated one (1) Business Day prior for the Adjustment Time, as necessary (such statement for the Initial Closing, the "Estimated Initial Closing Statement"; and such statement for a Deferred Closing, an "Estimated Deferred Closing Statement"); provided that any Estimated Initial Closing Statement or Estimated Deferred Closing Statement, as applicable, will not be required to include any Proration Items, Cash adjustment amounts or Unpaid Principal Balance calculations with respect to any Deferred Asset (or the applicable Deferred Interests relating thereto) that is not being Transferred at the applicable Closing.  In the event that Seller Parties and the Purchaser Parties agree to revisions to the Estimated Initial Closing Statement or the Estimated Deferred Closing Statement, as applicable, the Seller Parties shall deliver their revised, if applicable, statement of estimated Proration Items (if applicable), applicable Closing Unpaid Principal Balance Statement and other credits and adjustments to the Unadjusted Purchase Price or Unadjusted Asset Purchase Price Amount, as applicable, to Purchaser no less than one (1) Business Day before the applicable Closing Date (the Estimated Initial Closing Statement or the revised statement, if any, the "Initial Closing Statement"; and the applicable Estimated Deferred Closing Statement or the revised statement, if any, the "Deferred Closing Statement"). The Proration Items and other credits and adjustments reflected in the applicable Closing Statement will be paid at the applicable Closing by the Purchaser Parties to the Seller Parties (if the Proration Items, credits and adjustments result in a net credit to the Seller Parties) or by the Seller Parties to the Purchaser Parties (if the Proration Items, credits and adjustments pursuant to this Section 1.4 result in a net credit to the Purchaser Parties) by increasing or reducing the cash to be delivered by the Purchaser Parties in payment of the Estimated Initial Purchase Price or Estimated Deferred Purchase Price, as applicable, at the applicable Closing.  As soon as practicable following the applicable Closing and, in any event, with respect to the Purchased Interests and Transferred Properties, not later than one hundred eighty (180) days (except, in the case of real property Taxes, twelve (12) months, in the case of Closing Year Additional and Percentage Rent, ninety (90) days following the date that such Rents are billed, and, in the case of Texas Franchise Taxes, twenty-four (24) months) after the applicable Closing, the Purchaser Parties shall prepare in good faith and deliver to the Seller Parties for their approval, which approval shall not be unreasonably withheld, delayed or conditioned, an update to the Initial Closing Statement (as approved by the Purchaser Parties, the "Adjusted Initial Closing Statement") or the Deferred Closing Statement (as approved by Purchaser, each such updated Deferred Closing Statement, an "Adjusted Deferred Closing Statement") which update will reflect the Purchaser Parties calculation of Proration Items and other credits and adjustments pursuant to this Section 1.4 as of the applicable Closing Date based on the information available as of the preparation date.  As soon as practicable following the applicable Closing with respect to the Purchased Commercial Loans and, in any event, not later than one hundred eighty (180) days after the applicable Closing, the Purchaser Parties shall prepare in good faith and deliver to the Seller Parties for their approval, which approval shall not be unreasonably withheld, delayed or conditioned, an Adjusted Initial Closing Statement or an Adjusted Deferred Closing Statement which update will reflect (1) the Purchaser Parties calculation of Proration Items, credits and adjustments pursuant to  Section 1.2(b) and (c) as of the applicable Closing Date based on the information available as of the preparation date and (2) the applicable Adjusted Closing Date Portfolio Tape.  Re-prorations and adjustments will be made commencing after the Initial Closing when actual amounts are determined only where expressly provided in this Section 1.4.

(iii)

Review by Accountants.  If the Seller Representative disagrees with any Proration Items or other adjustments or calculations on any Adjusted Initial Closing Statement or any

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Adjusted Deferred Closing Statement (each, an "Adjusted Closing Statement"), it shall provide a notice to the Purchaser Parties within sixty (60) days after its receipt of such Adjusted Closing Statement with respect to Purchased Interests and Transferred Properties, and fifteen (15) days with respect to Purchased Commercial Loans, setting forth the items with which it disagrees with reasonable detailed support in respect of such disagreement (the "Seller Objection Notice").  If the Parties are, after using their respective good faith efforts, unable to reach agreement on all such items within thirty (30) calendar days, with respect to Purchased Interests and Transferred Properties, and fifteen (15) days with respect to Purchased Commercial Loans, following the receipt by the Seller Parties of a Seller Objection Notice, the Purchaser Representative and the Seller Parties shall, within fifteen (15) calendar days after the end of such thirty (30) day period, cause Ernst & Young LLP (or, if they are unable or unwilling to serve, a firm of accountants of nationally recognized standing reasonably satisfactory to the Purchaser Representative and the Seller Parties (the "Accountants") to promptly review this Agreement and the disputed line items in such Adjusted Closing Statement for the purpose of resolving such dispute.  In performing their review, the Accountants shall (A) apply only the provisions of this Section 1.4, (B) determine the accurate application of such provisions to only those line items in the applicable Adjusted Closing Statement as to which the Seller Parties have disagreed and which the Purchaser Representative and the Seller Parties have been subsequently unable to reach agreement, and (C) limit their determination of the appropriate amount of each of the line items in the applicable Seller Objection Notice, and shall make a final determination in writing, binding on the Parties, of the appropriate amount with respect to each such line item by selecting in its entirety either the position initially submitted to the Accountants by the Purchaser Parties' or the position initially submitted to the Accountants by the Seller Parties pursuant to this Section 1.4(i)(iii) that the Accountants believe is, or is closest to, the most accurate calculation with respect to such disputed line item.  The Accountants shall adopt in its entirety the position of the Seller Parties or the Purchaser Representative on each disputed line item and shall not choose any other figure for any such disputed line item but, for the avoidance of doubt, may adopt one Party's position on some disputed line items and the other Party's position on other disputed line items.  The Accountants shall be required to deliver to the Purchaser Representative and the Seller Parties, as promptly as practicable, but no later than thirty (30) calendar days after the Accountants are engaged, a written report setting forth their resolution of the disputed line items.  The Purchaser Representative and the Seller Parties shall promptly comply with all reasonable requests by the Accountants for information, books, records and similar items.  If the Accountants determine that (x) the disputed line items result in a net loss for the Seller Parties, the Seller Parties shall be responsible for the Accountants' fees and expenses, or (y) the disputed line items result in a net loss for the Purchaser Parties, the Purchaser Parties shall be responsible for the Accountants' fees and expenses. In the event the Purchaser Representative and the Seller Parties are unable to agree on Accountants within fifteen (15) days after receipt by Purchaser Parties of a Seller Objection Notice (the "Resolution Period"), then each of the Purchaser Representative and the Seller Parties shall select an accountant on or prior to the fifteenth day after the receipt by the Purchaser Parties of the Seller Objection Notice and such accountants shall select the Accountant within five (5) Business Days of the last day of the Resolution Period.

(iv)

Final Payment.  Within three (3) Business Days after the delivery of an Accountant's written report pursuant to paragraph (iii) above, (A) the Purchaser Parties shall pay to the Seller Parties, by wire transfer of immediately available funds to the account(s) designated by the Seller Parties pursuant to Section 1.3, an amount equal to the amount, if any, by which the net credit to the Seller Parties is greater, or the net credit to the Purchaser Parties is less, on the applicable Adjusted Closing Statement (as finally determined pursuant to paragraph (iii) above as applicable) than the applicable credit taken into account in determining the Estimated Initial Purchase Price payable at the Initial Closing or the Estimated Deferred Purchase Price payable at the Deferred Closing, as applicable, or (B) the Seller Parties shall pay to the Purchaser Parties, by wire transfer of immediately available funds to the account(s) designated in writing by the Purchaser Parties, an amount equal to the amount, if any, by which the net

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credit to the Seller Parties is less, or the net credit to the Purchaser Parties is greater, on the applicable Adjusted Closing Statement (as finally determined pursuant to paragraph (iii) above as applicable) than the applicable credit taken into account in determining the Estimated Initial Purchase Price payable at the Initial Closing or the Estimated Deferred Purchase Price payable at the Deferred Closing, as applicable.

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sixty (60) days after the Initial Closing and each Deferred Closing, the Seller Parties and the Purchaser Parties will use their Commercially Reasonable Efforts to (a) agree on any further allocation of the Unadjusted Asset Purchase Price for each Transferred Property and each Purchased Interest required by Section 1060 of the Code or comparable provision of state or local law (or an equivalent requirement in a jurisdiction other than the United States), and (b) to the extent applicable to any Transactions contemplated by this Agreement, file Internal Revenue Service Form 8594 and any equivalent form required by a jurisdiction other than the United States on a basis consistent with such agreed allocation; provided, however, that if the Parties cannot agree on such allocation at least sixty (60) days prior to the filing of any Tax Return that requires inclusion of Internal Revenue Service Form 8594 or equivalent form required by a jurisdiction other than the United States with respect to such allocations, except for any extensions, then each such Party shall make their own determination and file a separate Internal Revenue Service Form 8594, or equivalent form required by a jurisdiction other than the United States, accordingly.  The Seller Parties and the Purchaser Parties each agree to provide the other promptly with any other information required to complete Internal Revenue Service Form 8594 or equivalent form required by a jurisdiction other than the United States.  Where applicable Law requires the Parties to agree on and report consistently an allocation of the Estimated Initial Purchase Price or Estimated Deferred Purchase Price for Tax purposes in connection with any Transaction contemplated by this Agreement, the Parties shall use their Commercially Reasonable Efforts, including reasonable cooperation and good faith negotiation, to comply with such Law; if the Parties cannot agree on such allocation at least sixty (60) days prior to the filing of any Tax Return that requires inclusion of such agreed upon allocation, an allocation that complies with such Law shall be determined by an internationally recognized independent accounting firm (selected by the Seller Parties and the Purchaser Parties and any related costs shall be borne equally by the Seller Parties and the Purchaser Parties) which determination shall be final and binding on the Parties.

ARTICLE II
INSPECTION AND TITLE MATTERS

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environmental inspection of, any Property or Commercial Loan Property without the Seller Parties' express prior written consent, in the Seller Parties' sole discretion.  The Seller Parties shall have the right to have a Representative present during any of the Purchaser Parties' or the Purchaser Related Parties' visits to or inspections of any Properties.  The Purchaser Parties may request any and all publicly available information about the Properties from Governmental Entities but will not disclose to any Governmental Entity (unless required by Law, in which event, to the extent not prohibited by applicable Law, the Purchaser Parties shall give to the Seller Parties at least ten (10) days' prior written notice of such intended disclosure) the results of any inspection, sampling or testing conducted at any Property without the Seller Parties' express prior written consent, in the Seller Parties' sole discretion.  The Purchaser Parties and all Purchaser Related Parties shall, in performing the Inspections, comply with the procedures set forth in this Agreement and with any and all Laws applicable to the applicable Property or Commercial Loan Property and shall not engage in any activities that would violate any Licenses and Permits, Leases, Ground Leases or Laws.  The Purchaser Parties shall: (x) promptly pay when due the costs of all Inspections done by the Purchaser Parties or the Purchaser Related Parties, and (y) restore the Properties or Commercial Loan Properties to the condition in which the same were found before any such Inspection, but in no event later than ten (10) calendar days after such damage occurs.

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(each, a "New Survey").  For purposes of this Agreement, "Title Company" shall mean Chicago Title Insurance Company, together with one or more co-insurers or re-insurers selected by the Purchaser Parties.   In addition, the Purchaser Parties shall have the right to order current title commitments for one or more of the Commercial Loan Properties and new surveys or modifications, updates to or recertifications to the Existing Survey for one or more of the Commercial Loan Properties.

(i)

On or before the date that is seven (7) Business Days after the date upon which the Purchaser Parties have received a Title Commitment or New Survey (or an update to either of the foregoing) (the "Objection Date"), the Purchaser Parties' counsel shall notify the Seller Parties' counsel in writing of any matters shown on or arising out of the applicable Title Commitment (or any update thereto), New Survey (or any update thereto), the Existing Policies or the Existing Surveys that the Purchaser Parties believe constitute Material Title Exceptions and/or Mandatory Removal Exceptions (provided that the Purchaser Parties' failure to provide written notice of a Mandatory Removal Exception shall not affect the Seller Parties' obligation to cure such Mandatory Removal Exception in accordance with Section 2.3(g) below) (each such item, a "Title Objection").

(ii)

Notwithstanding anything herein to the contrary, any objection notice given by the Purchaser Parties pursuant to Section 2.3(c)(i) shall be given by Purchaser prior to the applicable Closing Date.  If the Purchaser Parties fail to give an objection notice pursuant to Section 2.3(c)(i) with respect to any matter shown in any Title Commitment (or any update thereto) or New Survey (or any update thereto), Existing Policy, or Existing Survey on or before the applicable Objection Date, the Purchaser Parties shall be deemed to have irrevocably waived their right to object to such matter as a Material Title Exception and such Material Title Exception shall be deemed a Permitted Encumbrance; provided that the Purchaser's Parties failure to deliver an objection notice with respect to a Mandatory Removal Exception shall not affect the Seller Parties obligation to cure such Mandatory Removal Exception in accordance with Section 2.3(g) below and no Mandatory Removal Exceptions shall be deemed waived pursuant to this Section 2.3(c)(ii).

(iii)

Any title matters disclosed in the Title Commitments (or any update thereto), the Existing Policies or the Existing Surveys (or any update thereto) or the New Surveys (or any update thereto) that (A) (1) are raised by the Purchaser Parties on or before the applicable Objection Date, (2) materially impair the current use, operation, access or value of a Property or materially affects the operation of the business conducted thereon, and (3) are not Permitted Encumbrances, or (B) are Mandatory Removal Exceptions, shall be referred to collectively as "Material Title Exceptions."  Without limiting the generality of the foregoing, the Parties agree that the items set forth on Schedule 3.11 shall not be deemed to be Material Title Exceptions.

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(other than deliveries by the Seller Parties contemplated by this Section 2.3(d)), shall be at the Purchaser Parties' sole cost and expense (other than the costs and expenses of any endorsement or affirmative coverage arranged by the Seller Parties to elect to cure a Material Title Exception or Mandatory Removal Exception in accordance with Section 2.3(h)) and the Title Policies shall in no way be deemed a condition to the Purchaser Parties' obligations to effect and close the Transactions.  The Purchaser Parties agree to work with the Title Company's Atlanta, Georgia office in collaboration with its New York office on the affidavits, certifications and information to be delivered by the Seller Parties to the Title Company under this Section 2.3(d).

(i)

all unpaid personal property, real estate and any excise Taxes related thereto, and all water, sewer, utility, trash and other similar charges, in each case that are (A)  not yet due and payable and delinquent as of the applicable Closing Date but are or may become or give rise to a Lien on all or any portion of such Property, or (B) being contested in good faith by the owner of such Property and have been paid in full (it being understood that such items may be subject to apportionment or adjustment at the applicable Closing as provided herein);

(ii)	undetermined or inchoate liens, rights of distress and charges incidental to construction, maintenance or current operations that have not at such time been filed or exercised or that relate to obligations not due or payable;

(iii)

in respect of Properties located in Canada, reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, and/or any statutory limitations to title set out by statute;

(iv)	the rights of the Tenants as tenants only without any purchase options or rights of refusal pursuant to Leases or otherwise relating to the premises leased by a Tenant, other than any Ground Leases, now in effect or which may be in effect on the applicable Closing Date;

(v)	the terms and conditions of the Ground Leases and any matter affecting the fee estate of lessor under a Ground Lease under a Ground Lease only and such matter does not encumber the leasehold estate;

(vi)	except for any Mandatory Removal Exception, any Material Title Exceptions deemed to be a Permitted Encumbrance pursuant to this Section 2.3 or otherwise waived by the Purchaser Parties as provided in this Section 2.3;

(vii)

other than Mandatory Removal Exceptions, all easements, rights of way, encumbrances, covenants, conditions, restrictions that appear of record (other than Mandatory Removal Exceptions), provided that no such matter materially impairs the current use or value of such Property or the operation of the business conducted thereon in any material manner;

(viii)

all matters created or caused by or on behalf of, or with the written consent of, the Purchaser Parties or any Affiliate thereof;

(ix)	all Laws, including all environmental, building and zoning restrictions affecting such Property or the ownership, use or operation thereof adopted by any Governmental Entity having jurisdiction over such Property or the ownership, use or operation thereof, and all amendments or

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additions thereto now in effect or which may be in force and effect after the date hereof with respect to such Property, except to the extent that the Property is not in material compliance with any Laws relating to zoning; the Parties hereby acknowledge and agree that the failure of any Property to have any required certificate of occupancy or other permit or license (other than on account of a failure of such Property to be in material compliance with a Law relating to zoning) shall not be treated as a title or survey matter and shall be deemed to be a Permitted Encumbrance;

(x)

any Liens of mechanics, material or materialmen, contractors, consultants, or other workmen or suppliers for labor and/or material provided to or for the benefit of the Property for or on behalf of any Tenant, to the extent such Liens encumber such Tenant's leasehold interest only, are fully reimbursable by a Tenant, and are Liens for which a Tenant has an obligation to remove under a Lease (each, a "Tenant Lien");

(xi)

Liens securing obligations for which a credit in an amount sufficient to cause such Lien to be removed from or endorsed over in the Title Policy, together with the fees associated with such removal or endorsement, will be given to the Purchaser Parties at the Closing or that are reflected on the Estimated Initial Closing Statement or Estimated Deferred Closing Statement;

(xii)

with respect to Commercial Loan Properties, the terms and conditions set forth in any of the Purchased Commercial Loans, including any intercreditor agreements, subordination agreements, participation agreements, cross collateralization agreements and similar agreements related thereto, and the rights of the Obligors set forth therein;

(xiii)

Liens securing Existing Loans relating to such Property; and

(xiv)

all other documents and matters listed or referred to on Schedules 3.6 and 3.19.

(i)

Upon receipt of the notice described in Section 2.3(c), the Seller Parties shall have the right, by the date that is ten (10) Business Days after receipt of notice of such Title Objection (or no later than five (5) Business Days prior to the applicable Closing Date, unless the applicable notice of such Title Objection is provided within five (5) Business Days of the applicable Closing Date) or such other date as expressly provided herein, by written notice to the Purchaser Parties with respect to each Property affected by any such Material Title Exceptions, to elect to cure such Material Title Exception in accordance with Section 2.3(h).  If the Seller Parties (x) do not elect to cure any Material Title Exception, or (y) in the event the Seller Parties have elected to cure any Material Title Exception and fail to cure in accordance with Section 2.3(h) by the applicable Closing Date, the Purchaser Parties shall have the election to either (A) terminate this Agreement with respect to such Purchased Commercial Loan, Transferred Property or such Purchased Interest with respect to such Underlying Property, in which case such Purchased Commercial Loan, Transferred Property shall be deemed an Excluded Asset and if the Underlying Property is owned by a Joint Venture, the related Purchased Interests shall be deemed an Excluded Asset, or (B) proceed to Closing with respect to the affected Transferred Property, Purchased Commercial Loan or Purchased Interest; provided, however, that, in the event that the Seller Parties have elected to cure any such Material Title Exception, then the Purchaser Parties shall not be entitled to terminate this Agreement with respect the applicable Purchased Commercial Loan, Transferred Property or Purchased Interests for so long as the Seller Parties shall be using their Commercially Reasonable Efforts to cure such Material Title Exception  or any Debt Removal Exception.

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(ii)

Except to the extent that Seller Parties shall have elected to cure any Material Title Exception, Seller Parties shall not be required and are not obligated to bring any Action or proceedings, convey or acquire any interest in real property, incur any expense or liability with respect to the removal or cure of Material Title Exceptions or take any other Action of any kind or nature to render title to any of the Properties free and clear of any title or survey exceptions, objections or encumbrances (except as provided below with respect to Mandatory Removal Exceptions), and the Purchaser Parties shall have no right of specific performance or other relief against the Seller Parties to cause any Material Title Exceptions to be satisfied or cured.

(i)

relating to any applicable Transferred Property or any applicable Purchased Interest with respect to an Underlying Property, the Seller Parties shall, or shall cause the applicable Equity Entities to, at the sole cost and expense of the Seller Parties, pay in full or cause to be canceled and discharged, bonded or otherwise cause the Title Company to insure over (other than with respect to a Security Lien and subject to the reasonable approval of the Purchaser Parties) or otherwise cure in accordance with Section 2.3(h): (i) any mortgage, deed of trust or other security instrument securing any indebtedness (each, a "Security Lien") that does not secure an Existing Loan, (ii) all mechanics' and contractors' Liens which encumber any Property as of the Closing Date (other than Tenant Liens), and (iii) all Liens against such Property which evidence monetary obligations of any Seller Party or any Equity Entity (or an Affiliate thereof) other than with respect to an Existing Loan (in each case, excluding the Permitted Encumbrances, the "Property Removal Exceptions"); provided that the Seller Parties' obligation to discharge any liens under clause (ii) and (iii) shall be capped, per Property, at an amount equal to the greater of (x) $250,000, and (y) five percent (5%) of the Unadjusted Asset Purchase Price Amount with respect to the applicable Property;

(ii)

relating to a Purchased Commercial Loan, the Seller Parties shall, at their sole cost and expense, cure any defect or impairment that results in the applicable Commercial Loan Mortgage not being a first priority lien on the applicable Commercial Loan Property to the extent such lien is contemplated pursuant to the terms of the Purchased Commercial Loan (a "Debt Removal Exception"; together with the Property Removal Exceptions, collectively, the "Mandatory Removal Exceptions"); and

(iii)

notwithstanding anything to the contrary contained herein, the Seller Parties shall, to the extent required to be paid by the landlord under a Lease, cause to be paid in full all past due real and personal property Taxes as provided in Section 1.4(d).

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Company to apply such funds to fully discharge same and the Title Company agrees to remove the same from the Title Policy, and (B) in the case of Properties located in the United States, Mexico or Canada, if required by the Title Company, such instruments, in recordable form, as are necessary to enable the Title Company to discharge such Material Title Exception or Mandatory Removal Exception of record.  Other than with respect to a Debt Removal Exception the extent that funds are needed to cure any Mandatory Removal Exception or Material Title Exception, the Seller Parties shall have the right to direct that any portion of the Estimated Initial Purchase Price or Estimated Deferred Purchase Price, as applicable, being paid at the Closing to be delivered to the applicable title company to cure same.

(i)

With respect to an Exclusion Notice relating to a Designated Equity Asset (each a "Specified Equity Asset"), the Purchaser Parties and the Seller Parties shall negotiate in good faith for a period of fourteen (14) days after delivery by the Purchaser Parties of the applicable Exclusion Notice and attempt to find a commercially reasonable solution with respect to each Specified Equity Asset, which may include an adjustment to the Unadjusted Asset Purchase Price payable with respect to such Specified Equity Asset or a mutual election by the Purchaser Parties and the Seller Parties to exclude such Specified Equity Asset from the Transactions. If the Purchaser Parties and the Seller Parties mutually agree in writing during such fourteen (14) day period to exclude the applicable Specified Equity Asset from the transactions, such Specified Equity Asset shall be deemed an Excluded Asset.  If the Purchaser Parties and the Seller Parties mutually agree upon a reduction of the Unadjusted Asset Purchase Price for such Specified Equity Asset, such reduced Unadjusted Asset Purchase Price shall be reflected in a writing executed by Purchaser Representative and Seller Representative.  If the Purchaser Parties and the Seller Parties are unable to reach a mutually agreed upon solution for a Specified Equity Asset within the 14-day period specified above, then, within five (5) Business Days following the conclusion of such fourteen (14)-day negotiation period, the Purchaser Representative (on behalf of the Purchaser Parties) shall have the right to submit to arbitration the appropriate reduction, if any, to the Unadjusted Asset Purchase Price by delivery of a written notice to the Seller Parties specifying such election (each a "Equity Arbitration Notice"). Within ten (10) days of the Purchaser Representative's delivery of the Equity Arbitration Notice (the "Equity Response Period"), the Seller Parties shall have the option by delivery or written notice to Purchaser (each an "Equity Response Notice") to exclude such Specified Equity Asset in which case such Specified Equity Asset shall be a deemed Excluded Asset.  If the Seller Parties fail to timely deliver an Equity Response Notice the appropriate reduction, if any, to the Unadjusted Asset Purchase Price for such Specified Equity Asset shall be determined by arbitration in accordance with paragraph (ii) below.

(ii)	Within five (5) days of the expiration of the Equity Response Period, each of the Purchaser Parties and the Seller Parties shall identify one of the Equity Arbitrators with respect to the arbitration relating to the applicable Specified Equity Asset.  If the Purchaser Parties and the Seller Parties

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elect the same Equity Arbitrator, such Equity Arbitrator shall be the arbitrator with respect to the applicable arbitration.  If the Purchaser Parties and the Seller Parties do not select the same Equity Arbitrator, the unnamed arbitrator in the definition of Equity Arbitrator shall be the arbitrator with respect to the applicable arbitration.  If either the Purchaser Parties or the Seller Parties fails to timely select an Equity Arbitrator, the arbitrator with respect to such arbitration shall be the Equity Arbitrator selected by the other Party.  In connection with any such matter submitted to arbitration, within ten (10) days following the appointment of the designated  Equity Arbitrator, each of the Purchaser Parties and the Seller Parties shall submit to the designated Equity Arbitrator  its written estimate of the "as is" fair market value of the Specified Equity Asset as of the date of this Agreement  (which cannot be in excess of the original applicable Unadjusted Equity Asset Purchase Price) (each, an "Equity  FMV Estimate"), supported by a written statement setting forth in such detail as it deems appropriate its basis for such valuation.  The designated Equity Arbitrator shall provide copies of each such submission to the other party.  If either the Purchaser Parties or the Seller Parties fails (such Party being herein referred to as the "Non-Submitting Party") to submit an Equity FMV Estimate within such ten (10) day period, the Equity FMV Estimate submitted by the other Party shall be deemed correct and conclusive for all purposes with respect to this Agreement, the arbitration shall be deemed concluded and the Unadjusted Asset Purchase Price for such Specified Equity Asset shall be deemed to be modified to be the such Equity FMV Estimate.   If the Purchaser Parties and the Seller Parties each submit an Equity FMV Estimate, the designated Equity Arbitrator shall select one of the submitted Equity FMV Estimates as the correct determination of the fair market value and shall have no right to propose a middle ground or any modification of any of the proposed positions.  The Equity Arbitrator's selection shall be final and binding upon the Parties and shall be conclusive for all purposes with respect to this Agreement and the Unadjusted Equity Purchase Price for such Specified Equity Asset shall be deemed to be modified to be equal to the Equity FMV Estimate so selected.

(iii)

The aggregate Unadjusted Asset Purchase Prices of Specified Equity Assets that may be subject to the provisions of this paragraph (b) shall not exceed Five Hundred Million U.S. Dollars ($500,000,000).

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES

 

Except as set forth in the Disclosure Schedules referenced below in this Article III, subject to the terms of Section 12.14, the Seller Parties, jointly and severally, represent and warrant to the Purchaser Parties as follows:

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the date hereof does not impact the enforceability of this Agreement against such Seller Party under any applicable Law, as of the applicable Closing, will be) in good standing under the Laws of the jurisdiction of its formation. Each Seller Entity, if required by applicable Law, is qualified to transact business and is in good standing in the jurisdiction where the applicable Property is located, except for the failure to be so qualified or in good standing that would not have a material adverse effect on such applicable Property.  Each Seller Party has the requisite corporate, limited liability company or limited partnership, as applicable, power and authority (i) to enter into this Agreement and all documents contemplated hereunder to be entered into by the Seller Parties, (ii) to perform their respective obligations hereunder and thereunder and (iii) to consummate the Transactions.  The execution and delivery by the Seller Parties of this Agreement and all documents contemplated hereunder to be executed and delivered by each Seller Party and the consummation of the Transactions have been duly authorized by all necessary corporate, limited liability company or limited partnership action, and no other corporate, limited liability or limited partnership proceedings on the part of each Seller Party or its members or partners are necessary to authorize any of the foregoing.  This Agreement has been, and all documents contemplated hereunder to be executed by the Seller Parties, when executed and delivered will have been, duly executed and delivered by each Seller Party and shall constitute the valid and binding obligation of the Seller Parties, enforceable against them in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to the enforcement of creditors' rights and by general principles of equity.  The representatives of each Seller Party executing this Agreement in the name and on behalf of each Seller Party, have been granted with the sufficient authority and powers of attorney to enter into this Agreement and bind each Seller Party pursuant to the terms and conditions hereof, and such authority and powers of attorney have not been limited, modified, amended and/or revoked as of the date hereof.

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Statements").  To the Knowledge of the Seller Parties, the Reference Financial Statements present fairly, in all material respects, the financial condition of the applicable Joint Venture as of their respective dates.

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shall be true and correct as of the date thereof (subject to updates to reflect changes to the factual information for the period commencing on the date of the Signing Portfolio Tape and terminating on the applicable Closing Date.

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(b)	Notwithstanding any other provision of this Agreement, this Section 3.12 sets forth the Seller Parties' sole and exclusive representations and warranties with respect to Environmental Conditions,

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Hazardous Materials or any matters arising under, related to or regulated pursuant to any Environmental Law or any Action related thereto, the Equity Entities' and the Seller Parties' compliance with or liabilities under Environmental Laws, and other environmental matters.

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such Purchased Commercial Loan, or any Person claiming under any such right, in accordance with the terms and conditions thereof and as regards the Laws governing the specific Purchased Commercial Loan; (ii) no Seller Party (x) is in material breach of or default under any Purchased Commercial Loan, no other event has occurred which, with notice and/or lapse of time, would constitute a material default by any Seller Party or the applicable Purchased Entity thereunder or (y) with respect to any US Purchased Commercial Loan, is required to comply with "bulk sales laws" or regulations relating to transfers governed by Article 6 of the UCC of any state or any other applicable Laws or regulations relating to bulk transfers in connection with the consummation of any of the transactions contemplated hereby; (iii) subject to Section 5.2(g), as of the applicable Closing, the applicable Purchaser Party shall be the owner and holder of all right, title and interest in each Purchased Commercial Loan; (iv) all payments pursuant to each Purchased Commercial Loan are made directly to the applicable Seller Party to an agent or servicer for such Seller Party; and (v) with respect to the Transfers of any Purchased Commercial Loan, no Seller Party has any Liability or obligation to pay any fees or commissions or any similar payment to any broker, finder, or agent with respect to any Purchased Commercial Loan.

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promptly after the date hereof be made available to the Purchaser Parties.  No Seller Entity has delivered or received any written notice of default or termination under any Debt Ground Lease that remains uncured.

(i)	all Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of the Purchased Interests;

(ii)

all Contracts relating to development, construction, capital expenditures or purchase of any properties, in each case, requiring aggregate payments in excess of $1,000,000 during their remaining term following the Closing Date by any Equity Entity or a Seller Party with respect to a Transferred Property (each, a "Major Property Contract");

(iii)

all Contracts constituting Indebtedness (A) of any Equity Entity or (B) of a Seller Party with respect to a Transferred Property;

(iv)	all Contracts that limit in any material respect the ability of any Equity Entity to compete in the line of business of such Equity Entity  as currently conducted;

(v)

all Contracts that involve the future disposition or acquisition of any Property (or any interest therein) owned by a Seller Entity or a Subsidiary of a Seller Entity, or any Purchased Commercial Loan owned by a Seller Entity or a Subsidiary of a Seller Entity, or any merger, consolidation or similar business combination transaction involving any Equity Entity;

(vi)	all Contracts involving any joint venture, partnership, strategic alliance or shareholders' agreement to which an Equity Entity is a party;

(vii)

all guarantees of third party obligations by any Equity Entity, but, in each case, excluding any guarantee by any Equity Entity to its wholly owned Subsidiary;

(viii)

any (A) Contract under which any Equity Entity, has agreed to provide a monetary loan to any Person (other than the Purchased Commercial Loans), but, in each case, excluding any loan by any Equity Entity to its wholly owned Subsidiary or (B) any material property management agreement relating to a Property; and

(ix)

with respect to any Property that is a hotel or other lodging facility (a "Hotel"), any license or franchise agreement (a "Franchise Agreement") and any management agreement for a Hotel where (i) the management agreement is part of the Franchise Agreement (or vice versa) or (ii) the manager is an Affiliate of the franchisor under the Franchise Agreement for such Hotel (collectively, the "Hotel Agreements").

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Notwithstanding anything above in (i) through (ix), "Material Contracts" shall not include any Contract that (1) is a Lease or Ground Lease, (2) constitutes a Purchased Commercial Loan or any documents entered into in connection with a Purchased Commercial Loan, (3) other than a Major Property Contract, is terminable upon sixty (60)-days' (or less) notice without penalty or premium, (4) will be fully satisfied at or prior to the Closing, (5) will be terminated in connection with, or shall not be binding on a Purchaser Party or Equity Entity following, the Closing, or (6) is an Organizational Document of an Equity Entity.

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liabilities, obligations or other existing arrangements between any Equity Entity, on the one hand, and either (i) any Seller Party, or (ii) any Affiliate of any Seller Party, on the other hand (each, an "Affiliate Contract").

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MAKES, IS DEEMED TO HAVE MADE OR HAS BEEN AUTHORIZED BY ANY SELLER PARTY OR ANY AFFILIATES THEREOF TO MAKE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE SELLER PARTIES, ANY AFFILIATE OF A SELLER PARTY, THE PURCHASED ENTITIES, THE PURCHASED INTERESTS, THE PROPERTIES, THE PURCHASED COMMERCIAL LOANS, THE COMMERCIAL LOAN PROPERTIES, THE COMMERCIAL LOAN BACKLOG OR THE TRANSACTIONS, AND THE SELLER PARTIES HEREBY DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY A SELLER PARTY, ANY AFFILIATE OF A SELLER PARTY OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, ADVISORS, REPRESENTATIVES OR ANY OTHER PERSON AND IF MADE, SUCH REPRESENTATION OR WARRANTY MAY NOT BE RELIED UPON BY THE PURCHASER PARTIES OR ANY OF THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, ADVISORS OR REPRESENTATIVES AS HAVING BEEN AUTHORIZED BY THE SELLER PARTIES OR THEIR AFFILIATES OR SUCCESSORS OR ASSIGNS.  EXCEPT FOR THE EXCLUDED LIABILITIES AND THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND AGREEMENTS EXECUTED BY THE SELLER PARTIES, THE SELLER PARTIES HEREBY DISCLAIM ANY AND ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, OPINION, REPORT, DATA, PROJECTION, FORECAST, ESTIMATE, VALUATION, APPRAISAL, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE, SUMMARY OR OTHER INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO THE PURCHASER PARTIES OR THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, ADVISORS OR REPRESENTATIVES (INCLUDING ANY OPINION, REPORT, DATA, PROJECTION, FORECAST, ESTIMATE, VALUATION, APPRAISAL, STATEMENT, MEMORANDUM, PRESENTATION, ADVICE, SUMMARY OR OTHER INFORMATION THAT HAS BEEN OR IS PROVIDED TO THE PURCHASER PARTIES BY ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, CONSULTANT, ADVISOR OR REPRESENTATIVE OF ANY SELLER PARTY OR ANY AFFILIATE OF A SELLER PARTY, INCLUDING ANY INFORMATION MADE AVAILABLE IN ANY ELECTRONIC OR PHYSICAL DATA ROOMS IN CONNECTION WITH THE TRANSACTION).  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND AGREEMENTS EXECUTED BY THE SELLER PARTIES, NO SELLER PARTY NOR ANY AFFILIATE THEREOF MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE PURCHASER PARTIES REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF ANY OF THE PURCHASED ENTITIES, THE PURCHASED INTERESTS, THE PURCHASED COMMERCIAL LOANS, THE UNDERLYING PROPERTIES, THE PROPERTIES OR THE COMMERCIAL LOAN BACKLOG OR THE VALUATION OF ANY OF THE FOREGOING OR THE CREDITWORTHINESS OF ANY OBLIGOR THERETO, AND EXCEPT FOR THE EXCLUDED LIABILITIES, THE PURCHASER PARTIES SHALL BE SOLELY RESPONSIBLE FOR, AND SHALL SOLELY RELY ON, THEIR OWN OPINIONS, REPORTS, DATA, PROJECTIONS, FORECASTS, ESTIMATES, VALUATIONS, APPRAISALS, STATEMENTS, MEMORANDA, PRESENTATIONS, ADVICE, SUMMARIES AND OTHER INFORMATION IN REGARDS TO SUCH SUCCESS, PROFITABILITY OR VALUATION. THE DISCLOSURE OF ANY MATTER OR ITEM IN ANY SECTION OF THE DISCLOSURE SCHEDULES SHALL NOT BE DEEMED TO CONSTITUTE AN ACKNOWLEDGMENT THAT ANY SUCH MATTER IS REQUIRED TO BE DISCLOSED.

 

Except as set forth in the Disclosure Schedules delivered by the Purchaser Parties to the Seller Parties and dated of even date herewith, the Purchaser Parties, jointly and severally, represent and warrant to the Seller Parties as follows:

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 been or will be derived from any unlawful activity with the result that the investment of (i) direct equity owners in any Purchaser Party or (ii) indirect equity owners in any Purchaser Party owning more than twenty-five percent (25%) of the ownership interests in such Purchaser Party is prohibited by Law or that any of the Transactions or this Agreement is or will be in violation of Law.  The Purchaser Parties have and will continue to implement procedures, and have consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to each Closing.  No Purchaser Party is engaging in the Transactions, directly or indirectly, on behalf of, or instigating or facilitating the Transactions, directly or indirectly, on behalf of, any Person or nation, which would contravene the provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).

4.9 Canada Value Added Tax.  As of the Closing Date, each Purchaser Party, to the extent organized pursuant to the federal laws of Canada or the laws of any province of Canada, is properly registered for applicable federal and provincial Canadian value added taxes.

4.10            No Other Representations and Warranties; No Reliance; Purchaser Parties Investigation.

 

 

ARTICLE V

COVENANTS

 

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 that may be taken by an Operating Partner without the consent of any Seller Party or any Affiliate of a Seller Party and with respect to which no consent by the Seller Party has been requested by the Operating Partner, (v) with respect to any Joint Venture, actions or inactions with respect to which the applicable Seller Party or Equity Entity does not have the authority to take because it is not the Operating Partner, or (vi) consented to in writing by the Purchaser Parties, which consent may be granted or withheld, delayed or conditioned in the Purchaser Parties sole discretion (except as otherwise provided below), the Seller Parties shall, and shall cause each of the Purchased Entities to:

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(A)

(i) with respect to the Equity Entities, acquire, merge, assign any interest in, sell or ground lease, or enter into any option or agreement to acquire, merge, assign any interest in or sell or ground lease, or exercise an option or contract to acquire any material properties, or (ii) with respect to any Seller Party, sell or ground lease, any of the Properties or Equity Entities or any part thereof or interest therein (except, in each case, (x) as set forth on Schedule 5.1(i)(A), or (y) the acquisition of any Commercial Loan Properties pursuant to foreclosure, deed in lieu or similar proceedings with respect to any assets underlying any Purchased Commercial Loans) as permitted by this Agreement;

(B)	encumber or subject to any Lien any of the Properties or Equity Entities, or take or omit to take any action that results in a Lien being imposed on any of the Properties or Equity Entities (other than in accordance with Section 2.3 of this Agreement);

(C)

except as expressly required by the terms of a Material Contract, Material Lease or Ground Lease, (x) terminate, assign, amend or modify any Material Contract, (y) terminate, assign, amend or modify any Existing Loan Document, any Purchased Commercial Loan or Material Loan Documents, any Material Lease or any Ground Lease, or (z) sell, pledge, dispose of or transfer the Purchased Commercial Loans;

(D)

enter into any (x) Material Contract, other than in the ordinary course of business, which are terminable upon no more than 60 days prior written notice without any penalty or fee, (y) Leases (other than Leases relating to the leasing of less than 10,000 square feet of rentable space at any Property entered into in accordance with past practice and on market terms), or (y) Ground Lease;

(E)

amend any of the Organizational Documents of any Equity Entity, convert the corporate form or classification of any Equity Entity or distribute any reserves from any Equity Entity or liquidate, merge or consolidate any Equity Entity, except as permitted in connection with an Alternative Transaction undertaken in accordance with Section 1.5 or as set forth on Schedule 5.1(i)(E);

(F)

incur, create, assume, guaranty, repay, prepay or forgive any Indebtedness of any Equity Entity, in each case, other than any (i) scheduled repayments under the terms of third party Indebtedness, or (ii) the advancing or repayment of nominal working capital advances in the ordinary course of business;

(G)

authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, any Equity Entity, or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any Equity Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Equity Entity;

(H)

split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any Equity Entity, or make any other change in the capital structure of any Equity Entity, except as obligated to do so pursuant to the Organizational Documents of any Equity Entity;

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(I)

except as required by a liability insurance policy and except with respect to the compromise or settlement of any matter covered by an insurance policy that will not transfer to the Purchaser Entities at the applicable Closing and does not relate to any Properties, Purchased Interests or Equity Entities, compromise or settle any insurance claims or other litigation relating to the Purchased Interests, Equity Entities, Properties, this Agreement or the Transactions contemplated hereby (unless otherwise consented to by the Purchaser Parties, with respect to which, if requested by the Seller Parties, the Purchaser Parties shall not unreasonably withhold, delay or condition their consent), other than any settlements that do not require any payments or admission of fault by the Purchaser Parties or any Equity Entity following the applicable Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on Purchaser Parties or any Equity Entities following the applicable Closing Date;

(J)

enter into any commitments or agreements with any Governmental Entity affecting any Property or the Purchased Interests (except in accordance with the terms of Article VIII, in the ordinary course of business or tenant leases to any Governmental Entity permitted by Section 5.1(i)(D) hereof, the execution of which will be governed by the remaining provisions of this Section 5.1) or commence any rezoning proceedings;

(K)

except as permitted in connection with an Alternative Transaction undertaken in accordance with Section 1.5, (i) make, change or rescind any election relating to Taxes with respect to any Property, Equity Entity or Purchased Commercial Loan, including any election relating to the classification of any Equity Entity for U.S. federal income tax purposes, or (ii) change any method of Tax accounting, or amend any Tax Return, settle or compromise any federal, state, local or other Tax liability, audit, claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or enter into any closing agreement related to Taxes, in each case, with respect to any Property, Equity Entity or Purchased Commercial Loan), except that the consent of the Purchaser Parties to the matters in this subparagraph (K)(ii) shall not be unreasonably withheld;

(L)	change their credit, pricing or collateral eligibility standards or credit quality classifications in respect of a Purchased Commercial Loan in any material respect, except as required by applicable Law;

(M)	grant any waiver (including forgiving any indebtedness) or agreement to forbear the enforcement of, or otherwise grant any consent or approval regarding any of the foregoing relating to, any of the terms, covenants or conditions of any Purchased Commercial Loan;

(N)

grant the subordination or release of any security (including any guarantees or other recourse) or loan collateral with respect to any Purchased Commercial Loan (other than releases required under the applicable Commercial Loan-Related Assets or the ordinary course release of funds from escrow or reserve accounts pursuant to the applicable Commercial Loan-Related Assets);

(O)	permit the sale, transfer or encumbrance of, or grant of a participation right in, any Purchased Commercial Loan to any third party;

(P)

(i) initiate any litigation, proceeding or action against any Obligor or take any action in connection with any litigation, proceeding or action against any Obligor existing as of the date hereof (other than in the ordinary course of business), (ii) exercise any of its other remedies under the Commercial Loan-Related Assets (other than in the ordinary course of business), or (iii) negotiate or discuss with any Obligor or pursue any potential foreclosure actions, deed-in-lieu of foreclosure

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agreements, discounted payoffs, restructurings, work-outs or other amendments with respect to any of the Purchased Commercial Loans;

(Q)	grant any consent or approval requested by an Operating Partner under any Joint Venture (including approving any "major decisions", budget or business plan with respect to any Joint Venture) or make any capital calls for additional capital contributions to a Joint Venture;

(R)	forfeit or apply any Security Deposits under any Lease without the consent of the Purchaser Parties;

(S)

hire any individual who would be a Business Employee other than (i) any replacement employee (on employment terms and conditions that are not substantially less favorable to the employer) and any individual who received an offer of employment prior to the date hereof to provide services to any Purchased Entity or any Subsidiary thereof, or (ii) employees hired by the Seller Parties to the extent required by applicable Law;

(T)

except as disclosed on Schedule 3.10(b), recognize any union or other labor organization as the representative of any of the Business Employees, or enter into any new or amended collective bargaining agreement with any labor organization except as required by applicable Law or as reasonably necessary to implement the provisions of this Agreement; or

(U)	consent to, agree or otherwise commit to take, any of the foregoing actions.

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releases to be issued by the Parties with respect to their execution and delivery of this Agreement.  The Parties agree that the initial press release shall be issued no later than three (3) Business Days following the date hereof; provided that in no event shall the Purchaser Parties be entitled to issue any such press release prior to the issuance of the initial press release by the Seller Parties.  Each Party will use Commercially Reasonable Efforts to consult with the other Parties before issuing, and provide the other Parties an opportunity to review and comment upon, any filing made with a Governmental Entity (as required by Law, fiduciary duty or the rules and regulations of applicable securities exchanges; each a "Required Filing"), presentation to investors or securities analysts, press release or other written public statement that contains a description or discussion of the Transactions (other than any description or discussion that contains only information previously agreed between the Parties), and shall not make, issue or deliver any such Required Filing, presentation, press release or public statement prior to such consultation; provided that in no event shall the Purchaser Parties make, issue or deliver any such filing, presentation, press release or public statement prior to the issuance of the initial press release by the Seller Parties, except as required by applicable Law.

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Transactions.  Except to the extent provided for in Section 5.5(b), Transfer Taxes arising as a result of the Transactions shall be for the account of the Seller Parties, other than Transfer Taxes (if any) arising as a result of the Transactions set forth in Schedule 5.5(a); provided, however, that the Purchaser Parties shall bear EUR 5,000,000 of Transfer Taxes relating to the transfer of European situated Equity Entities or Properties otherwise to be borne by the Seller Parties under this Section 5.5, which amount shall be in addition to the amount of any Transfer Taxes which may be due on the Transactions set forth on Schedule 5.5(a).  The provisions of Section 1.5 shall apply to any Alternative Transaction proposed by either Party to minimize Transfer Taxes covered by this Section 5.5 and Schedule 5.5(a). For the avoidance of doubt, all Transfer Taxes shall be timely paid to the relevant authority by the Party which is responsible therefor pursuant to applicable Law, and if either Party pays in aggregate more than its allocable share under this Section 5.5(a), the other Party shall reimburse such Party for the difference.

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Seller Parties unless (i) otherwise required by applicable law, (ii) to the extent such Seller Parties consent to a change from past practices (such consent not to be unreasonably withheld, delayed or conditioned), or (iii) to the extent such consistency results in a materially adverse Tax consequence for the Purchaser Parties.  The Purchaser Parties shall provide to the Seller Parties drafts of such Tax Returns for Straddle Tax Periods no later than forty-five (45) days prior to the applicable due date including any applicable extensions (unless the applicable due date is less than sixty (60) days after the Closing Date, in which case the Purchaser Parties shall provide to the Seller Parties such draft Tax Returns within a reasonable time prior to filing).  The Seller Parties shall have fifteen (15) days from the receipt thereof to provide the Purchaser Parties with any comments or proposed adjustments to such draft Tax Returns for the Straddle Tax Periods, and any such comments or proposed adjustments shall be considered by the Purchaser Parties in good faith.  If the Seller Parties have no objections to such Tax Returns for Straddle Tax Periods, or if the Purchaser Parties agree to the changes proposed by the Seller Parties, such draft Tax Returns shall be binding upon the Seller Parties.  If the Purchaser Parties and Seller Parties cannot resolve any disagreements with respect to the proposed Tax Returns for Straddle Tax Periods within ten (10) days prior to the applicable due date, the Purchaser Parties and Seller Parties jointly shall select an independent tax expert to resolve such differences, with the fees and costs of such tax expert to be borne fifty percent (50%) by the Purchaser Parties and fifty percent (50%) by the Seller Parties, and with the decision of such tax expert as to any matters in dispute between the Purchaser Parties and the Seller Parties to be binding and conclusive on all Parties.  The Seller Parties shall pay to the Purchaser Parties no later than three (3) days prior to the due date for filing any such Tax Returns for Straddle Tax Periods the amount of Taxes owing with respect to the portion of such Straddle Tax Periods as determined as if such taxable period ended as of the Closing Date.  The Seller Parties shall be entitled to all Tax refunds of or attributable to the Purchased Entities and any Subsidiaries thereof for Pre-Closing Tax Periods and the portion of any Straddle Tax Periods ending on the Closing Date, unless (i) such Tax refund is attributable to the carryback from a taxable period commencing after the Closing Date or the portion of any Straddle Tax Periods beginning after the Closing Date of items of loss, deduction or credit, or other Tax items, of the Purchased Entities or any Subsidiaries thereof (or any of their respective Affiliates, including the Purchaser Entities) or (ii) otherwise specifically provided in this Agreement.  The Purchaser Parties shall be responsible for preparing and filing all other Tax Returns of the Purchased Entities and any Subsidiaries thereof and of the Purchaser Parties with respect to the Purchased Entities and any Subsidiaries thereof and their assets and income.  Nothing in this Section 5.6(d) shall be interpreted as to require the Seller Parties or Affiliates thereof to provide to the Purchaser Parties or Affiliates thereof any consolidated or group or combined or unitary Tax Returns in which any Purchased Entity or any Subsidiary thereof may be a participant for periods prior to the Closing Date.

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comments or proposed adjustments to such draft real property Tax Returns for the Straddle Tax Periods, and any such comments or proposed adjustments shall be considered in good faith by the Purchaser Parties.  The Seller Parties shall pay to the Purchaser Parties no later than three (3) days prior to the due date for filing any such real property Tax Returns for the Straddle Tax Periods the amount of Taxes owing with respect to the portion of such Straddle Tax Periods as determined pursuant to Section 1.4.  The Seller Parties shall be entitled to all real property Tax refunds related to the Properties for Pre-Closing Tax Periods and the portion of any Straddle Tax Periods ending on the Closing Date, unless (i) such Tax refund is attributable to the carryback from a taxable period commencing after the Closing Date or the portion of any Straddle Tax Periods beginning after the Closing Date of items of loss, deduction or credit, or other Tax items, of the Purchased Entities or any Subsidiaries thereof (or any of their respective Affiliates, including the Purchaser Entities), or (ii) otherwise specifically provided in this Agreement. The Purchaser Parties shall be responsible for preparing and filing all other real property Tax Returns related to the Properties.  Nothing in this Section 5.6(e) shall be interpreted as to require the Seller Parties or Affiliates thereof to provide to the Purchaser Parties or Affiliates thereof any consolidated or group or combined or unitary Tax Returns in which any Purchased Entity or any Subsidiary thereof may be a participant for periods prior to the Closing Date.

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behalf of any Purchaser Party or Affiliate thereof of any such rebate or refund, the Purchaser Parties shall pay to  the Seller Parties an amount equal to the portion of such rebate or refund to which the Seller Parties are so entitled (less any portion thereof to which a Tenant may be entitled) and net of any Tax cost imposed on any Purchaser Party as a result of receiving such refund or rebate.  A Seller Party, at its expense, shall have the right, but not the obligation, to control and continue (but not settle or compromise, except as expressly provided below) any such appeal or related proceedings which are pending as of the date of this Agreement, including the employment of counsel, and shall promptly provide to the applicable Purchaser Parties all material information relating to such appeals or proceedings as and when such information becomes known to a Seller Party, together with such other information as the applicable Purchaser Parties may reasonably request; provided, however, if a Seller Party elects not to control any such appeal or related proceeding, then such Seller Party shall give prompt written notice to the applicable Purchaser Parties of such election, and, thereafter, the applicable Purchaser Parties shall have the right, but not the obligation, to control such appeal or related proceeding and the settlement or compromise thereof. A Seller Party may not settle or compromise any such appeal or related proceeding without prior written consent of the applicable Purchaser Parties, which consent shall not be unreasonably withheld.

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 Seller after the Closing.  Furthermore, the Purchaser Parties, on behalf of themselves and their Affiliates, acknowledge and hereby agree that, except as set forth below in this Section 5.9, (a) the rights of the Equity Entities to any of the GE Names and GE Marks pursuant to the terms of any trademark agreements between the Seller Parties and any of their respective Affiliates, on the one hand, and the Equity Entities, on the other hand, or otherwise shall terminate on the applicable Closing Date; and (b) on the applicable Closing Date, the Purchaser Parties and their respective Affiliates shall cease and discontinue all uses of the GE Names and GE Marks on any and all items and materials of the Equity Entities .

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 Property, any Commercial Loan Property or any Law applicable thereto, or any other matter arising under Environmental Laws or  relating to the use, presence, discharge or release of or exposure to Hazardous Materials, prior to the date hereof; provided, however, the foregoing release shall not apply with respect to any Claim by any Purchaser Party against the Seller Parties for intentional fraud, knowingly committed, or indemnification by the Seller Parties under Section 11.2, subject to the limitations and conditions provided in Sections 10.2, 11.1, 11.4, 11.5 and 11.6, as applicable.  Each of the Purchaser Parties expressly waives the benefits of any provision or principle of federal or state law or regulation that may limit the scope or effect of the foregoing waiver and release.

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attornment and non-disturbance agreements and certifications from ground lessors, tenants, lenders, managers, franchisors, counterparties to reciprocal easement agreements, condominium boards (or similar governing body) or any other third parties to the extent requested by the Purchaser Parties and in form and substance reasonably satisfactory to any potential lender (collectively, the "Requested Estoppels"; provided, however, that notwithstanding anything herein to the contrary, neither Seller nor any Seller Person shall be required to deliver or cause the delivery of any legal opinions or accountants' cold comfort letters or reliance letters.  Each of the Purchaser Parties agrees that the effectiveness of any documents executed by or on behalf of Purchased Entity in connection with the financing shall be subject to, and not effective until, the consummation of the applicable Closing.  As a condition to the Seller Parties' obligations pursuant to this Section 5.18, the Purchaser Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable out-of-pocket costs and expenses (excluding attorney's fees and expenses and disbursements) incurred by the Seller Parties, the Purchased Entities or any Affiliate thereof in connection with the cooperation contemplated by this Section 5.18. and shall reimburse, defend, indemnify and hold harmless any Seller Indemnified Party from, against and in respect of any and all Losses resulting from, or that exist or arise due to or in connection with the arrangement of the Financing and any information used in connection therewith.

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applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder.  From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loan.

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expressly provided in this Agreement, the costs, fees and expenses (including any applicable Taxes) related to the Transfers contemplated by this Section 5.24(a) shall be the sole responsibility of the Seller Parties.

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(i)

the Purchaser Parties or the Purchased Entities shall notify the Seller Parties' Corporate Insurance departments of all such claims and/or efforts to seek benefits or coverage and shall cooperate with the Seller Parties' or any of their applicable Affiliates' in pursuing all such claims, provided that the Purchaser Parties and the Purchased Entities shall be solely responsible for notifying any and all insurance companies of such claims and complying with all policy conditions for such claims.  In addition, the Purchaser Parties and the Purchased Entities shall pursue or cause to be pursued any rights of recovery against third parties with respect to Triggering Events and shall cooperate with the Seller Parties' and their applicable Affiliates' with respect to pursuit of such rights.  The order of priority of any such recoveries shall inure first to the Seller Parties to reimburse any and all costs incurred by the Seller Parties directly or indirectly as a result of such claims or losses and then to the Available Insurance Policies;

(ii)

the Seller Parties and their applicable Affiliates shall have the right but not the duty to monitor and/or associate with coverage claims or requests for benefits asserted by the Purchaser Parties or Purchased Entities under the Available Insurance Policies, including the coverage positions and arguments asserted therein, provided that the  Purchaser Parties and the Purchased Entities (w) shall notify the Seller Parties in advance of such coverage claims, (y) shall not, without the written consent of the Seller Parties, erode, settle, release, commute or otherwise resolve disputes with respect to Available Insurance Policies nor amend, modify or waive any rights under any such insurance policies and programs, and (z) shall not assign the Available Insurance Policies or any rights or claims under the Available Insurance Policies; and

(iii)

For avoidance of doubt, Available Insurance Policies shall not include any of the Seller Parties' claims-made or occurrence-reported liability policies, the Seller Parties' data privacy & network security, transit, and construction all risk insurance policies, and/or the Seller Parties' nor any of their Affiliates' aviation liability policies.

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the applicable non-U.S. Purchased Interests, Transferred Properties or Purchased Commercial Loans in front of an appropriate notary and shall cooperate to take such other actions and file such agreements or other documents as may be necessary or desirable under applicable Law in order to effect the Transfer of all non-U.S. Purchased Interests, Transferred Properties or Purchased Commercial Loans in accordance with the terms and conditions of this Agreement.

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ARTICLE VI

OPTION ASSETS

 

(i)	the definitions of Transferred Properties, Underlying Properties, Purchased Interests and Purchased Entities will include the Option Assets;

(ii)

all applicable covenants, representations and warranties shall be deemed to be made with respect to the applicable Option Assets with respect to which an Exercise Notice has been delivered as of the date hereof and as of the Initial Equity Closing Date (which covenants, representations and warranties shall, for the avoidance of doubt, be deemed to have been made and effective as of such dates as if the Option Assets were considered Transferred Properties, Underlying Properties, Purchased Interests and Purchased Entities); and

(iii)

the Unadjusted Asset Purchase Price Amount for purposes of this Agreement, including Section 1.2(a) and Section 1.2(b), will be increased by the Option Unadjusted Asset Purchase Price Amounts for the Option Assets.

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to Section 2.4 as it does for the Equity Assets, and in the event the Purchaser Parties exercise rights with respect to an Option Equity Asset under Section 2.4 which results in such Option Asset becoming an Excluded Asset, such removed Option Asset shall not be included as an Option Equity Asset for purposes of this Section 6.1.

 

(a)            

(i)

In the event that (A) any Required Third Party Consent and/or any applicable consent or approval of any Governmental Entity, including any required waiver of a Pre-Emptive Right or ROFR, has not been received or waived (including satisfaction of the condition set forth in Section 9.2(a)(i)) prior to any applicable Closing (with respect to each applicable Deferred Asset, the receipt of such consent or waiver being referred to herein as the "Deferral Consent Condition"), and (B) the Parties have not otherwise agreed to the Transfer of any of such Purchased Interests, Transferred Properties, Underlying Properties, Purchased Commercial Loans and/or Underlying Commercial Loans to the Purchaser Parties at the Initial Closing or the applicable Deferred Closing, then, the applicable Purchased Interests, Transferred Properties and/or Purchased Commercial Loans shall be considered Deferred Assets.

(ii)

The Purchaser Parties hereby covenant to order (or cause to be ordered) and use diligent efforts to pursue the receipt of an institutional bank ordered appraisal for each property that secures a Purchased Commercial Loan which shall be FIRREA and USPAP compliant (each, a "FIRREA Appraisal"), provided that it shall not be a condition to any of the obligations of the Purchaser Parties under this Agreement that any of the foregoing appraisals indicate a minimum value with respect to the Commercial Loan Properties. Receipt of a FIRREA Appraisal for a Purchased Commercial Loan shall be a condition precedent to the Purchaser Parties' obligations to acquire such Purchased Commercial Loan on the applicable Closing Date, other than the final Closing Date prior to the Outside Debt Date.  Each Purchased Commercial Loan with respect to which the Purchaser Parties do not have a FIRREA Appraisal shall be deemed a "Deferred Asset" until to the earlier to occur of (A) the date on which the Deferral Condition set forth in this Section 7.2(a)(ii) is satisfied, and (B) the Outside Debt Date.

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(ii) The Purchaser Parties shall notify the Seller Parties on the applicable Closing Notice Date of whether the Purchaser Parties have received FIRREA Appraisals for the Purchased Commercial Loans that have not yet been the subject of a Closing.  In the event the Purchaser Parties have not received the FIRREA Appraisal for any Purchased Commercial Loans on or prior to the Closing Notice Date, but such FIREEA Appraisal is received prior to the Closing Date to which the Closing Notice Date relates, the Purchaser Parties (following receipt of prior written consent of the Seller Representative, which may be withheld in the Seller Representative's sole and absolute discretion) shall have the option, but will not be required, to close the Transfer of the applicable Purchased Commercial Loans on such Closing Date. If the Purchaser Parties do not elect to close the Transfer on such Closing Date, subject to the terms and conditions of this Agreement including Section 7.1(a)(ii), the Closing with respect to such Purchased Commercial Loan shall be deferred until the next Closing Date.

(i)

for purposes of the applicable Closing for which the Deferral Condition has not been met, the Transferred Properties, Purchased Interests and Purchased Commercial Loans that are to be Transferred at such Closing shall not include the Deferred Assets and the obligations of Purchaser and Seller with respect to such Closing shall not apply to the Deferred Assets;

(ii)	the Seller Parties will not remake any representation or warranty with respect to the Deferred Assets as of the applicable Closing Date for which the Deferral Condition has not been met;

(iii)

at the Initial Closing, the Unadjusted Purchase Price will be reduced by the Unadjusted Asset Purchase Price Amount with respect to the affected Deferred Assets;

(iv)	at any applicable Deferred Closing, the aggregate Unadjusted Asset Purchase Price Amount will not be payable at such Deferred Closing with respect to the affected Deferred Assets; and

(v)	the Seller Parties will not have any obligations to Transfer to the Purchaser Parties, and the Purchaser shall have no obligation to acquire from the Seller, any Purchased Interests, Transferred Properties, or Purchased Commercial Loans that relate to a Deferred Asset.

(c)

(i)

In the event that a Deferral Consent Condition relating to an Operating Partner has not been satisfied on or before May 31, 2015, the Parties shall have a ten (10) day period to discuss the strategy for exercising Exit Rights that may be available to the Seller Parties under the applicable Venture Agreement (the "Buy-Sell Discussion Period").

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(ii)

If the Parties have not agreed to an alternate strategy prior to the end of the Buy-Sell Discussion Period and the Venture Agreement permits the exercise of a "buy-sell" right by the applicable Seller Party in such circumstances, then the Seller Parties shall be entitled to exercise the "buy-sell" rights under the applicable Venture Agreement for the Operating Partner's equity interests in the Joint Venture (the "Venture Buy-Sell") at the BS/S Value.  The "BS/S Value" shall mean the aggregate amount of the Unadjusted Asset Purchase Price Amounts for the Underlying Properties owned, directly or indirectly, by the Joint Venture and included in the Transaction.  Seller will exercise the Exit Right established pursuant to this Section 7.2(c) (the "Buy-Sell") pursuant to a written notice to the Operating Partner in a form reasonably agreed by the Parties using a gross value attributed to the applicable Underlying Properties then owned directly or indirectly by the Joint Venture (a "Buy/Sell Sale Price") equal to such BS/S Value or such greater price designated in writing by Purchaser Parties and reasonably approved by Seller Parties.  Prior to the exercise by the Seller Parties of the Buy-Sell, the Purchaser Parties shall confirm that all of the conditions to the sale by Seller Parties to the Purchaser Parties of the Underlying Property or Underlying Properties owned by the applicable Joint Venture have been satisfied to the extent that they can be satisfied as of such date, other than the delivery of documents to effect such sale at the applicable Deferred Closing.

(iii)

In the event the Buy-Sell is exercised and the Seller Parties acquire the Underlying Property or 100% of the interests in the applicable Joint Venture, such Underlying Property shall be deemed to be a "Transferred Property" and there shall be no Transfer of the related Purchased Interest at the applicable Closing Date.  In the event the Buy-Sell is exercised and the Operating Partner elects to acquire the Purchased Interests or interests in any Subsidiary of the Joint Venture, the Purchased Interests and Purchased Vehicle shall be removed from Schedule 1 and the Purchaser Parties shall be entitled to receive 100% of the proceeds of such sale received by Seller Parties from a sale to the Operating Partner or a third party of Seller Parties' interests or Underlying Property and resulting from the Buy/Sell Sale Price being used in lieu of the BS/S Value.

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Interests or Properties (or any indirect interest of the applicable Seller Party in the Equity Entity that is subject to the Exit Right) in excess of the Unadjusted Asset Purchase Price Amount for such Purchased Interest, with such proceeds credited to the applicable Purchaser Party at the  next succeeding Closing (provided that the Purchaser Parties shall not be entitled to elect to have the Seller Parties sell any such equity interests or Properties if the price offered by such third party upon exercise of the Exit Rights is less than the purchase price that would be payable by a Purchaser Party with respect to such Purchased Interests or Properties under this Agreement (as determined in accordance with Section 1.2 of this Agreement and the applicable adjustments under Section 1.4 hereof)), and (iii) at any time following such election by the Purchaser Parties to have the Seller Parties sell or authorize the sale of such equity interests or Properties, in no event shall any such Purchased Interests or Properties with respect to which such election has been exercised constitute Specified Equity Assets or be deemed to have Material Title Exceptions hereunder (and the Purchaser Parties shall not be entitled to deliver an Objection Notice or Exclusion Notice with respect to such Purchased Interests or Properties).

(i)

the definitions of Properties and Purchased Interests will not include any such ROFR Assets, except to the extent that any provision that is stated to survive the termination of this Agreement would be applicable to a Property or a Purchased Interest, as applicable, and with respect to this Section 7.3 to the extent necessary to implement this Section 7.3;

(ii)

the definition of Purchased Entities will not include any Purchased Entities that solely hold ROFR Assets, except to the extent that any provision is stated to survive the termination of this Agreement would be applicable to a Purchased Entity, and with respect to this Section 7.3 to the extent necessary to implement this Section 7.3;

(iii)

the Seller Parties will not have any obligations with respect to the ROFR Assets, nor will any covenant, representation or warranty be deemed made with respect to the ROFR Assets except to the extent that any such covenant, representation or warranty was made as of the date of this Agreement, is contained in this Section 7.3 or is stated to survive the termination of this Agreement, and the Purchaser Parties will not have any rights or obligations under this Agreement with respect to the ROFR Assets;

(iv)	at the Initial Closing, the Unadjusted Asset Purchase Price Amount with respect to the affected ROFR Assets will not be payable at the Initial Closing;

(v)	at any applicable Deferred Closing, the Unadjusted Asset Purchase Price Amount will not be payable at such Deferred Closing with respect to the affected ROFR Assets; and

(vi)	the Seller Parties will not have any obligations to Transfer to the Purchaser Parties any ROFR Assets.

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ARTICLE VIII

CASUALTY AND CONDEMNATION

 

ARTICLE IX

CLOSING

 

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those conditions) and subject to the provisions set forth in Section 9.5, the initial closing of the Transactions with respect to the Purchased Commercial Loans (the "Initial Debt Closing") and the initial closing of the Transactions with respect to the Equity Assets (the "Initial Equity Closing", and together with the Initial Debt Closing, the "Initial Closings" and, as the context may require, each an "Applicable Initial Closing" and the Transactions that close at the Initial Closings, the "Initial Transactions") will each take place at the New York City office of Hogan Lovells US LLP, unless another time, date or place is agreed by the Seller Parties and the Purchaser Parties, as follows:

In the event that the Applicable Initial Closing shall not have occurred as of the Applicable Initial Closing Date and the only conditions to the obligations of the Parties to effect the Transactions that have not been satisfied as of such date are the conditions set forth in Section 9.2(b), then the Seller Parties, on the one hand, or the Purchaser Parties, on the other hand, shall be entitled, by notice to the other no later than 11:59 p.m. (Eastern Time) on the Applicable Initial Closing Date, to extend the Applicable Initial Closing Date by an additional number of days not to exceed thirty (30) days, in each instance.  The Applicable Initial Closing Date may be extended pursuant to the immediately preceding sentence up to the Outside Debt Date or the Outside Equity Date, as applicable.

(i)

With respect to any applicable Antitrust Laws, either (a) (x) with respect to the HSR Act, any applicable waiting period under the HSR Act with respect to Transactions shall have expired or been terminated, and (y) with respect to any other Antitrust Laws, any clearance shall have been granted or any applicable waiting period shall have expired or been terminated under other Antitrust Laws in jurisdictions where filings are made or to be made with respect to the Transactions as a whole pursuant to Sections 5.2(a) and 5.2(b) without action by any Governmental Entity to prevent consummation of the Transactions, or (b) any action commenced by any Governmental Entity under Antitrust Laws in relation to the Transactions as a whole shall have been resolved in a manner that permits the consummation of the applicable Closing; provided, however, that if the condition specified in

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 this Section 9.2(a)(i) is not satisfied with respect to any specific Purchased Commercial Loan or Equity Asset as of the applicable Closing, such Equity Asset or Purchased Commercial Loan shall be designated a Deferred Asset, as provided in Article VII hereof and the applicable Closing shall proceed; and

(ii)

With respect to any other required consents, approvals and actions of, filings with, and notices to, any Governmental Entity that are required to be made with respect to any Purchased Commercial Loan or Equity Assets to be Transferred at the applicable Closing shall have been obtained or made and remain in full force and effect; provided, however, that if the condition specified in this Section 9.2(a)(ii) is not satisfied with respect to any specific Purchased Commercial Loans or Equity Assets as of the applicable Closing, such Equity Assets or Purchased Commercial Loans shall be designated as Deferred Assets as provided in Article VII hereof and the applicable Closing shall proceed.

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have (i) delivered to the Seller Parties an executed counterpart of the Seller Financing Agreements applicable to the Seller Financed Assets; and (ii) shall have performed in all material respects all obligations required to be performed under the Seller Financing Arrangements on or prior to the applicable Closing Date.

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international political or social conditions, including the commencement, continuation or escalation of a war, armed hostilities or acts of terrorism directly or indirectly involving or affecting the United States of America or any other country in which the Properties or Purchased Commercial Properties are located.

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Purchased Commercial Loan and such Purchased Commercial Loan shall constitute an Excluded Asset hereunder, unless the Purchaser Parties irrevocably waive their rights to seek indemnification with respect such inaccuracy and any Losses related thereto.

 

  9.8                                   Non-United States Properties and Purchased Interests. The Initial Closing and any Deferred Closing to the extent relating to Properties or Underlying Properties located outside of the United States, shall include such other deliveries to effect such Closing as may be required by the Laws of the jurisdiction in which such Property is located; it being understood that in some jurisdictions an instrument of transfer may not be recorded immediately following the applicable Closing.

 

ARTICLE X

TERMINATION; DEFAULT AND REMEDIES

 

 

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Price, or (ii) the Purchaser Parties failure to perform any of their other obligations required to be performed on the Applicable Initial Closing Date in any material respect and (A) such failure to perform is not reasonably capable of being cured, or (B) such failure to perform is reasonably capable of being cured, but shall not have been cured within twenty (20) days after the Seller Parties' written notice to the Purchaser Parties; provided that the right to terminate pursuant to this Section 10.1(d) shall not be available if the Seller Parties shall have breached in any material respect their respective obligations under this Agreement so as to cause the conditions set forth in Sections 9.2, 9.4(a), 9.4(b), 9.4(d) or 9.4(e) not to be satisfied; or

The Party desiring to terminate this Agreement pursuant to this Section 10.1 shall give written notice of such termination to the other Parties.

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(in the case of an Initial Closing) or Section 9.2 and Section 9.7 (in the case of a Deferred Closing) have been satisfied (or waived by the Purchaser Parties), other than those conditions that by their nature are to be satisfied at Closing, and that the Seller Parties are prepared to consummate the applicable Closing and the Purchaser Parties fail to consummate the applicable Closing on or before the third (3^rd) Business Day after the delivery of such notice, then in such event,  upon written demand from the Seller Parties, the Purchaser Parties shall pay or cause to be paid to the Seller Parties as promptly as reasonably practicable (and, in any event, within three Business Days following such demand), the Termination Fee.

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material respect their respective obligations under this Agreement so as to cause the conditions set forth in Sections 9.2, 9.4(a), 9.4(b), 9.4(d) or 9.4(e) not to be satisfied; or

The Party desiring to terminate this Agreement with respect to the applicable Deferred Asset pursuant to this Section 10.4 shall give written notice of such termination to the other Parties. Notwithstanding anything to the contrary contained in this Section 10.4, the Parties acknowledge and agree that at the time of any termination pursuant to this Section 10.4, then this Agreement shall only be terminated with respect to the remaining Deferred Assets that have not yet been Transferred to the Purchaser Parties as of the applicable date of termination.

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SURVIVAL; INDEMNIFICATION

 

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Indemnified Parties") from and against any and all Losses that are suffered or incurred by any Seller Indemnified Party arising out of, resulting from or relating to any of the following matters:

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Indemnified Party shall be reimbursed by the Indemnifying Party).  Notwithstanding the foregoing provisions of this Section 11.5(b), (A) no Indemnifying Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 11.2 or 11.3 without the Indemnified Party's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such Third Party Claim and as a part of the settlement the Indemnified Party is released from all liability with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnified Party or any Property, as applicable, or require the Indemnified Party to admit any fault, culpability or failure to act by or on behalf of the Indemnified Party, and (B) no Indemnified Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 11.2 or 11.3 without the Indemnifying Party's prior written consent, which shall not be unreasonably withheld, conditioned or delayed.  Notwithstanding the foregoing provisions of this Section 11.5(b), if the Indemnifying Party does not notify the Indemnified Party within thirty (30) Business Days after receipt of the Indemnified Party's notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of any Third Party Claim, the Indemnified Party shall have the right to contest the Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement and the costs of such Actions by the Indemnified Party shall be paid by the Indemnifying Party.

(i)

The Seller Parties shall have the right, which right must be exercised within twenty (20) Business Days after receipt of notice of any Environmental Claim of indemnity hereunder or deemed waived, but not the obligation, to assume the defense or control of or settle any Environmental Claim, or undertake any Environmental Response, with counsel, consultants or contractors selected by any Seller Party (to be reasonably acceptable to the Purchaser Parties), provided that the Seller Parties shall, to the extent relevant to the Properties or the Equity Entities, (A) keep the Purchaser Parties reasonably informed as to the status of the foregoing, (B) promptly provide the Purchaser Parties with any material information, documentation and correspondence relating to the Environmental Claim or Environmental Response, and (C) consult with the Purchaser Parties prior to exchanges of material documentation, material information or material negotiations with any Person (the Purchaser Parties to make themselves and their Representatives reasonably available and without delay as to same).  The provisions of Section 11.5(d)(ii) shall apply to the defense, control or settlement by any Seller of an Environmental Claim.

(ii)

To the extent that any Seller Party has timely chosen, at its discretion, to undertake any Environmental Response, the Purchaser Parties shall, and shall cause each of its Affiliates and Representatives to, provide any Seller Party and its Representatives with reasonable access to such asset or property (subject to the rights of tenants) to permit any Seller Party or its Representatives to undertake such Environmental Response at reasonable times, on reasonable advance written notice and without unreasonable interference with the Purchaser Parties' business operations.  The Purchaser Parties agree that they will not, to the extent practicable, unreasonably interfere with or disturb any Seller Party's performance of such Environmental Response and, as is reasonably necessary, shall provide access to site utilities.

(iii)

To the extent that costs or liabilities relating to an environmental condition which is the subject of an Environmental Claim for which the Purchaser Parties seek indemnification from any Seller Party are exacerbated or increased after the Applicable Initial Closing Date due to an act or omission

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of the Purchaser Parties, their respective Affiliates, their respective contractors and subcontractors or third parties acting on their own or under the supervision or direction of the Purchaser Parties or any Governmental Entity, the Seller Parties shall not be responsible to the extent of any such increase in costs.

(iv)

The Seller Parties shall have no obligation for any Environmental Claim to the extent that the Loss for which the Purchaser Parties are seeking indemnification relates to, arises out of or results from (A) the closure, transfer, sale or termination of a Lease after the Closing Date, (B) any change in the use of all or part of any of the Properties after the Closing Date, or (C) any investigation, cleanup, remedial or similar activity other than as required to comply with the minimum applicable standards acceptable to the relevant Governmental Entity under applicable Environmental Law not in effect and enforceable as of the Closing Date.

(v)

The Seller Parties' indemnification obligation for any Environmental Claim shall be extinguished and of no further force or effect to the extent that any Purchaser Indemnified Party conducts or grants any third party permission to conduct any environmental sampling or testing of soil, subsurface strata, surface water, groundwater, sediments or ambient air at, on, under or within any portion of the Properties unless (A) in response to an immediate, imminent and substantial threat to human health or the environment as required under applicable Environmental Law, (B) in connection with the proposed closure of all or a portion of any Property were required by a Governmental Entity or Third Party Claim under Environmental Law or (C) if Seller Parties elects (or is deemed to have elected) not to assume the defense or control of or settle any Environmental Claim pursuant to Section 11.5(d)(i).

(i)

The Seller Parties shall not have any obligation or liability to any Purchaser Indemnified Party under Section 11.2(a), unless and until the aggregate amount of Losses incurred or suffered by the Purchaser Indemnified Parties arising out of the matters referred to in Section 11.2(a) (and exclusive of any Losses arising out of De Minimis Matters), shall have exceeded (A) with respect to Transferred Properties and the Purchased Interests, Twenty Million U.S. Dollars ($20,000,000), in which case, the Seller Parties shall only be obligated and liable with respect to the applicable excess amount over Twenty Million U.S. Dollars ($20,000,000), and (B) with respect to Purchased Commercial Loans,

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Twenty Million U.S. Dollars ($20,000,000), in which case, the Seller Parties shall only be obligated and liable with respect to the applicable excess amount over Twenty Million U.S. Dollars ($20,000,000).

(ii)

The Purchaser Parties shall not have any obligation or liability to any Seller Indemnified Party under Section 11.3(a) unless and until the aggregate amount of Losses incurred or suffered by the Seller Indemnified Parties arising out of the matters referred to in Section 11.3(a) (and exclusive of any Losses arising out of De Minimis Matters), shall have exceeded Forty Million U.S. Dollars ($40,000,000), in which case the Purchaser Parties shall only be obligated and liable under Section 11.3(a) with respect to the applicable excess amount over Forty Million U.S. Dollars ($40,000,000).

(i)

The liability of the Seller Parties pursuant to Section 11.2(a) shall not exceed (A) Two Hundred Fifty Million U.S. Dollars ($250,000,000) in the aggregate with respect to any Losses attributable to any Purchased Interests and Transferred Properties, and (B) Two Hundred Fifty Million U.S. Dollars ($250,000,000) with respect to any Losses attributable to any Purchased Commercial Loans.

(ii)	The liability of the Purchaser Parties for the Losses pursuant to Section 11.3(a) shall not exceed Five Hundred Million U.S. Dollars ($500,000,000) in the aggregate.

(iii)

Under no circumstances shall the aggregate liabilities of the Seller Parties or the aggregate liabilities of the Purchaser Parties, as the case may be, pursuant to this Article XI exceed Six Billion U.S. Dollars ($6,000,000,000); provided that under no circumstances, except with respect to liability under Section 11.2(e), shall the aggregate liability of the Seller Parties or the aggregate liabilities of the Purchaser Parties, as the case may be, with respect to any Losses attributable to any Purchased Interests, Transferred Property or Purchased Commercial Loan exceed an amount equal to the Unadjusted Asset Purchase Price Amount or Unadjusted Loan Purchase Price, as applicable, for such Purchased Interests, Transferred Property or Purchased Commercial Loan on an asset-by-asset basis.

(i)

None of the Seller Parties or the Purchaser Parties shall have any obligation or liability pursuant to Section 11.2(a) or Section 11.3(a), respectively, for any breach of any representation or warranty unless notice of a claim asserting such breach shall have been given in accordance with Section 11.5 prior to the termination of the survival period applicable to such representation or warranty as set forth in Section 11.1.

(ii)

None of the Seller Parties or the Purchaser Parties shall have any obligation or liability pursuant to Section 11.2(c) or Section 11.3(c), respectively, for any breach of any covenant contained in this Agreement that occurred prior to the applicable Closing unless notice of a claim asserting such breach shall have been given in accordance with Section 11.5 on or before the date that is six (6) months following the applicable Closing Date.

(iii)

None of the Seller Parties or the Purchaser Parties shall have any obligation or liability pursuant to Sections 11.2(b), 11.2(d), 11.2(e), 11.2(f), 11.3(b), 11.3(d), 11.3(e) or 11.3(f), respectively, unless notice of a claim asserting such breach shall have been given in accordance with Section 11.5 on or before the date that is the five (5) years following the applicable Closing Date.

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(iv)

It is the express intent of the Parties that, if the applicable period for an item as contemplated by this Section 11.6(d) is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated hereby.  The Parties further acknowledge that the time periods set forth in this Section 11.6(d) for the assertion of claims, under this Agreement are the result of arms' length negotiation among the Parties and that they intend for the time periods to be enforced as agreed by the Parties.

(i)

None of the Seller Parties or the Purchaser Parties shall have any obligation or liability under Section 11.2 or Section 11.3, as applicable, with respect to any Losses that are (A) caused by the actions of any Indemnified Party, (B) exacerbated by any Indemnified Party to the extent of the exacerbation, or (C) recovered by any Indemnified Party from any third party (including insurers).  The Indemnified Party shall seek full recovery under all insurance policies covering any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder.  If the amount of any Losses suffered by any Indemnified Party is reduced, at any time subsequent to any payment in respect thereof by an Indemnifying Party pursuant to Section 11.2 or Section 11.3, as applicable, by recovery from any other third party (including any insurer), an amount equal to the amount of such reduction (not to exceed, in any event, the amount so previously paid in respect thereof by the Indemnifying Party) shall promptly be repaid by the Indemnified Party to the Indemnifying Party.

(ii)	An Indemnifying Party shall not be required to indemnify any Indemnified Party to the extent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from the fraud, gross negligence or willful misconduct of the Party seeking indemnification.

(iii)

Notwithstanding anything to the contrary in this Agreement, no Party shall, in any event, be liable under this Article XI to any other Person for any consequential, incidental, indirect, special or punitive damages of such other Person, including loss of revenue, loss of income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof and, in particular, no "multiple of profits", "multiple of operating income" or "multiple of cash flow" or similar valuation methodology shall be used in calculating the amount of any Losses; provided that the foregoing does not limit such Party's liability under this Article XI with respect to actual loss of revenue, actual loss of income or profits or actual realized diminution in value.

(iv)

In connection with any claim for indemnification pursuant to Section 11.2(a), an indemnifiable Loss will arise only to the extent that the Loss is caused by the facts which constitute a breach of such representation and warranty and not by a deterioration (i) in the creditworthiness of an Obligor in respect of a Purchased Commercial Loan, or (ii) the value of the underlying real estate collateral based on general economic or market conditions in respect of such Purchased Commercial Loan.

(v)

In the event of any breach giving rise to an indemnification obligation under this Article XI, an Indemnified Party shall take and cause its Affiliates to take, or cooperate with an Indemnifying Party if so requested by the Indemnifying Party in order to take, all commercially reasonable measures to mitigate the consequences of the related breach.

(vi)	Notwithstanding anything in this Agreement, any amounts payable pursuant to the indemnification obligations under this Article XI shall be paid without duplication and in no event

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shall any Party hereto be indemnified under different provisions of this Agreement for the same Losses.  Without limiting the generality of the foregoing, the Purchaser Parties (A) shall make no claim for, and shall not be entitled to any indemnification under this Article XI in respect of, any matter that is taken into account in the calculation of the Estimated Initial Purchase Price or Estimated Deferred Purchase Price, as applicable, pursuant to Section 1.2 and (B) shall be limited to a single price adjustment without duplication to the extent any price adjustment arises from or out of any facts, circumstances, conditions or events that overlap.

GENERAL PROVISIONS

 

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if to the Seller Parties and/or Seller Representative, to:


General Electric Capital Corporation
901 Main Avenue
Norwalk, Connecticut 06851
Attention:                          Mark Landis, Executive Counsel – Mergers & Acquisitions
Telecopy:                          (203) 286-2181

with a copy (which shall not constitute notice) to:

Hogan Lovells US LLP

555 Thirteenth Street, NW

Washington, DC 20004

Attention:  J. Warren Gorrell, Jr.

Telecopy: (202) 637-5910

if to the Purchaser Parties to:


c/o The Blackstone Group
345 Park Avenue, 42nd Floor
New York, New York 10154
Attention: William Stein and Judy Turchin

with a copy (which shall not constitute notice) to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

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New York, New York 10154

Attention: Krista Miniutti

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any Affiliate of the Seller Parties, provided that no such assignment shall release any Seller Party from its obligations hereunder; (b) the Purchaser Parties shall have the right to designate one or more Purchaser Party Designees on or at any time following the date hereof, and such Purchaser Party Designees shall take title to any or all of the Purchased Interests,  Transferred Properties or Purchased Commercial Loans by notice to the Seller Parties given at least ten (10) Business Days prior to the Closing, provided that there is no increase in the costs borne by the Seller Parties under Section 12.13 (unless paid by the Purchaser Parties); and provided further that no such assignment shall release any Purchaser Party from its obligations hereunder; and (c) the Purchaser Parties shall have the right to collaterally assign their rights in this Agreement to any lender.

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each make reasonably available from time to time to discuss the subject matter of the Litigation Notice (A) one or more of its officers, (B) at least one member of its in-house or outside legal counsel and (C) such other employees or representatives as the other Parties may reasonably request; and (iii) the Seller Parties and the Purchaser Parties shall cooperate in good faith to resolve the disputed issues that are the subject-matter of the Litigation Notice prior to the expiration of such ninety (90) day period.

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disclosure of a possible breach or violation of, or default under, any Contract, Law or judgment or order of a Governmental Entity shall be construed as an admission or indication that any breach, violation or default exists or actually occurred.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Parties have caused this Purchase Agreement to be signed and delivered by their respective officers thereunto duly authorized all as of the date first written above.

SELLER:

GENERAL ELECTRIC CAPITAL CORPORATION,
         a Delaware corporation

By: _____________________________________________

Name:

Title:

[Signatures continue on the following page]

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BRE IMAGINATION HOLDCO LLC,
a Delaware limited liability company
By:
Name:
Title:

BRE IMAGINATION GERMANY I LLC,
a Delaware limited liability company
By:
Name:
Title:

BRE IMAGINATION GERMANY II LLC,
a Delaware limited liability company
By:
Name:
Title:

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EXHIBIT A

 

DEFINITIONS

Certain Definitions.  As used in this Agreement, the following terms have the following meanings when used herein:

"Action" means any action, suit, claim, complaint, demand, administrative or other proceeding, charge, grievance, dispute, assertion, arbitration or investigation by any Person.

"Accountants" shall have the meaning set forth in Section 1.4(i)(iii).

"Additional Rent" shall have the meaning set forth in Section 1.4(b)(iii)(A).

"Adjusted Closing Date Portfolio Tape" means a Portfolio Tape, in Microsoft Excel format, delivered to Purchaser and labeled "Project Kensington – CL Portfolio Tape" setting forth as of the applicable Closing Date, the Loan Portfolio Information for each Purchased Commercial Loan to be Transferred to Purchaser on such Closing Date.

"Adjusted Closing Statement" shall have the meaning set forth in Section 1.4(i)(iii).

"Adjusted Deferred Closing Statement" shall have the meaning set forth in Section 1.4(i)(ii).

"Adjusted Initial Closing Statement" shall have the meaning set forth in Section 1.4(i)(ii).

"Adjusted Unpaid Principal Balance Statement" means an accounting statement setting forth the Unpaid Principal Balances of all Purchased Commercial Loans to be Transferred to Purchaser through the applicable Closing Date, determined based on the Adjusted Closing Date Portfolio Tape for such Closing and giving effect to the adjustments set forth in Section 1.2(c) (together with all relevant supporting documentation).

"Adjustment Time" shall have the meaning set forth in Section 1.4(a)(ii).

"Affiliate" means, with respect to any Person, another Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person; provided that, for the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise and provided, further, that an Affiliate of any Person shall also include (i) any Person that, directly or indirectly, owns more than ten percent (10%) of any class of capital stock or other equity interest of such Person, and (ii) any officer, director, trustee or beneficiary of such Person.

"Affiliate Contract" shall have the meaning set forth in Section 3.20(a).

"Alternative Transactions" shall have the meaning set forth in Section 1.5.

"Agency Fees" means all fees collected by or on behalf of the Seller Parties and any of their Affiliates with respect to Agented Loans.

"Agented Loans" means, collectively, all Purchased Commercial Loans with respect to which a Seller Party or any Affiliate thereof is the servicer, administrative agent, collateral agent, security agent or similar role.

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"Agreement" shall have the meaning set forth in the Preamble.

"Anti-Corruption Law" means each of the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, the Corruption of Foreign Public Officials Act (Canada) and any other applicable Law of similar effect, in each case as such law may be amended from time to time.

"Antitrust Laws" means the HSR Act, the Competition Act (Canada)  and any other Laws applicable to the Purchaser Parties, the Seller Entities under any applicable jurisdiction that are designed to prohibit, restrict or regulate actions having the purpose or effect of lessening or preventing competition, or enabling or promoting monopolization or restraint of trade.

"Applicable Initial Closing" shall have the meaning set forth in Section 9.1.

"Applicable Initial Closing Date" shall have the meaning set forth in Section 9.1(b).

"Applicable Prepayment Reduction Amount" means, (a) with respect to a Fully Prepaid Commercial Loan, an amount equal to the difference, if positive, between (i) the sum of the Unpaid Principal Balance of the Fully Prepaid Commercial Loan as of the date such Purchased Commercial Loan becomes a Fully Prepaid Commercial Loan and all Commercial Loan Prepayment Fees paid with respect to the applicable Fully Prepaid Commercial Loan and (ii) the Unadjusted Loan Purchase Price, less the credits provided for in Section 1.4(h)(iii) as of the date such Purchased Commercial Loan becomes a Fully Prepaid Commercial Loan and (b) with respect to a Purchased Commercial Loan that is partially prepaid, an amount equal to the Commercial Loan Prepayment Fees.

"Assumed Contracts" means (i) all of the Material Contracts set forth on Schedule 5.1(h) hereto; (ii) all Hotel Agreements; (iv) all Contracts that are  terminable without penalty or fee on 60 days' notice; (v) Contracts with respect to the provision of any services for or to any applicable Property that require payments of less than $250,000 per annum and which extend no longer than one (1) year following the applicable Closing Date (other than Contracts that are required to be terminated pursuant to Section 5.1(h)); (vi) any other customary agreements related to multiple Properties (such as rooftop antenna leases) and no other properties and that require payments of less than $500,000 per annum; and (vii) any other Contracts assigned to a Purchaser Party at the applicable Closing at such Purchaser Party's request.

"Assumed Liabilities" shall have the meaning set forth in Section 1.1(c).

"Available Insurance Policies" shall have the meaning set forth in Section 5.28(a)(i).

"Backlog Asset" shall have the meaning set forth in Section 5.23.

"Bankruptcy" means the commencement of any proceeding under any applicable bankruptcy, reorganization, liquidation, insolvency, creditor's rights, or similar law now or hereafter in effect or commencement of a proceeding in which a receiver, liquidator or trustee is sought to be appointed.

"Blackstone Affiliate Purchaser Party" each Purchaser Party pursuant to the terms of this Agreement that is an Affiliate of The Blackstone Group L.P. or Blackstone Real Estate Advisors L.P.  Such Blackstone Affiliate Purchaser Parties are referred to on certain Schedules to this Agreement as "BXMT" and "BREDs".

"BS/S Sale Value" shall have the meaning set forth in Section 7.2(c)(ii).

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"Business Day" means a day other than Saturday, Sunday or any day on which commercial banks in New York, New York are authorized or obligated to close.

"Business Employees" means all employees, officers, or directors of (x) the Seller Parties, any of their Affiliates, in each case, who are employed by or performing services for or with respect to the Equity Entities, the Properties, the Underlying Properties, the Purchased Commercial Loans or the Underlying Commercial Loans or (y) the Equity Entities.

"Buy-Sell" shall have the meaning set forth in Section 7.2(c)(ii).

"Buy-Sell Discussion Period" shall have the meaning set forth in Section 7.2(c)(i).

"Buy/Sell Sale Price" shall have the meaning set forth in Section 7.2(c)(ii).

"Cash" means, as of the applicable Adjustment Time, an amount equal to an applicable Purchased Entity's cash and cash equivalent balances in the applicable currency required to be used hereunder.

"Casualty" shall have the meaning set forth in Section 8.1.

"CL Arbitrator" shall mean JPMorgan Bank, DB and BAML.

"Claims" shall have the meaning set forth in Section 5.12(a).

"Closing" means an Applicable Initial Closing or an applicable Deferred Closing (if any), as applicable.

"Closing Date" means an Applicable Initial Closing Date or the applicable Deferred Closing Date (if any), as applicable.

"Closing Date CL Portfolio Tape" means a Portfolio Tape, in Microsoft Excel format, delivered to the Purchaser Parties and labeled "Project Kensington – CL Portfolio Tape" setting forth (a) as of three (3) Business Days prior to the applicable Closing Date, the same Loan Portfolio Information as contained in the Signing Portfolio Tape for each Purchased Commercial Loan to be Transferred to the Purchaser Parties on such Closing Date, and (b)  as of the Adjustment Time, with respect to any Fully Prepaid Commercial Loan or partially prepaid Purchased Commercial Loan, the adjustments set forth in Article I, in each case, reflecting solely factual changes to the Loan Portfolio Information for each such Purchased Commercial Loan for the period commencing on the date of the Signing Portfolio Tape and terminating on the applicable Closing Date.

"Closing Notice Date" shall have the meaning set forth in Section 7.1(b).

"Closing Unpaid Principal Balance Statement" means an accounting statement setting forth the Unpaid Principal Balances of all Purchased Commercial Loans Transferred to the Purchaser Parties on the applicable Closing Date, determined based on the Closing Date CL Portfolio Tape for such Closing, and giving effect to the adjustments set forth in Section 1.2(c) as of the date of such Portfolio Tape, together with all relevant supporting documentation.

"Closing Statement" means an Initial Closing Statement or Deferred Closing Statement, as applicable.

"Closing Year Additional and Percentage Rent" shall have the meaning set forth in Section 1.4(b)(iv)(A).

"Code" means the United States Internal Revenue Code of 1986, as amended.

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"Commercial Loan" means any contract in existence on the date hereof or the applicable Closing (including, in each case, any amendment or modification thereto or extension, renewal, novation, assignment or assumption thereof), and any ancillary agreements relating thereto, that evidences a payment obligation and is in the form of a secured or unsecured financing and with respect to which any of the Purchased Entities or Seller Parties is, as of the date hereof or will be as of Closing,  the lender, secured party or obligee, including, without limitation, any Agented Loans.

"Commercial Loan Backlog" means any financing transaction similar in type to a Purchased Commercial Loan originated by Seller Parties but not included on the Signing Portfolio Tape.

"Commercial Loan Mortgage" means, with respect to each Purchased Commercial Loan, the mortgage, deed of trust, security deed (deed to secure debt), or other instrument creating a lien, mortgage or charge over or on a fee simple, freehold or leasehold estate in real property and securing a Purchased Commercial Loan.

"Commercial Loan Note" means, with respect to a Purchased Commercial Loan, the original executed promissory note or credit or facility agreement evidencing the indebtedness of an Obligor, together with the original of any allonge, rider, addendum or amendment thereto and any assignments thereof and any amendments or modifications thereto.

"Commercial Loan Property" means, with respect to any Commercial Loan, any real property (excluding any personal property covered by a security instrument other than a Commercial Loan Mortgage) securing such Commercial Loan.

"Commercial Loan-Related Asset" means with respect to a Purchased Commercial Loan, all of the right, title, and interest of the applicable Seller Party or Purchased Entity in, to and under (i) the Loan Files, the books, ledgers, files, reports, plans, records, manuals and other materials (in whatever form or medium) relating to such Purchased Commercial Loan, including, as applicable, the Commercial Loan Note, and any Commercial Loan Security Instruments related thereto; and (ii) all derivatives, swaps, hedging instruments and related instruments related to such Purchased Commercial Loan (if any), to the extent transferable; provided however that Commercial Loan-Related Assets shall not include Seller Parties' obligations under any derivatives, swaps, or hedging instruments in respect of a Purchased Commercial Loan.

"Commercial Loan Prepayment Fees" means all exit fees, equity kickers, default interest, late fees, prepayment fees, defeasance payments, yield maintenance, breakage and similar charges, as well as default interest and late fees, paid by an Obligor and received by a Seller Party with respect to the Seller Parties' interest in the applicable Purchased Commercial Loan.

 "Commercial Loan Security Instruments" means, with respect to each Purchased Commercial Loan, any loan agreement, subordination or intercreditor agreement, mortgage, deed of trust, assignment of leases and rents, security agreement, promissory note, guaranty, pledges, assignment of receivables, assignment of hedging arrangements and other assignments, debentures, duty of care agreements, letters of credit, bonds, assignment of life insurance policies, assignment of deposit accounts, title insurance policy and casualty insurance policy, in each case, whether printed or in electronic format.

"Commercially Reasonable Efforts" means the commercially reasonable efforts that a reasonably prudent Person desirous of achieving the contemplated result would use in similar circumstances to ensure that such result is achieved as expeditiously as possible; provided that a Party's commercially reasonable efforts shall

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