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Dividend Capital Diversified Property Fund Inc. – ‘10-Q’ for 6/30/10 – EX-10.2

On:  Friday, 8/13/10, at 7:45am ET   ·   For:  6/30/10   ·   Accession #:  1193125-10-188067   ·   File #:  0-52596

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 8/13/10  Div Cap Diversified Prop Fd Inc.  10-Q        6/30/10   24:6.5M                                   RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                    HTML    781K 
 2: EX-2.1      Purchase and Sale Agreement                         HTML    293K 
 3: EX-2.1.1    First Amendment to Purchase and Sale Agreement      HTML     26K 
 4: EX-2.1.2    Second Amendment to Purchase and Sale Agreement     HTML     57K 
 5: EX-2.1.3    Third Amendment to Purchase and Sale Agreement      HTML     26K 
 6: EX-2.1.4    Fourth Amendment to Purchase and Sale Agreement     HTML     65K 
 7: EX-2.2      Member Interest Purchase and Sale Agreement         HTML    504K 
 8: EX-2.2.1    First Amendment to Member Interest Purchase and     HTML     22K 
                          Sale Agreement                                         
 9: EX-2.2.2    Second Amendment to Member Interest Purchase and    HTML     41K 
                          Sale Agreement                                         
10: EX-2.2.3    Third Amendment to Member Interest Purchase and     HTML     23K 
                          Sale Agreement                                         
11: EX-2.2.4    Fourth Amendment to Member Interest Purchase and    HTML     54K 
                          Sale Agreement                                         
12: EX-2.3      Partnership Interests Purchase and Sale Agreement   HTML    279K 
13: EX-2.4      Member Interest Purchase and Sale Agreement         HTML    274K 
14: EX-10.1     Dividend Capital Floating Rate Office Portfolio     HTML    614K 
                          Loan Agreement                                         
15: EX-10.2     Dividend Capital Fixed Rate Office Portfolio Loan   HTML    615K 
                          Agreement                                              
16: EX-10.3     Loan Agreement for Floating Rate Portfolio          HTML    365K 
17: EX-10.4     Loan Agreement for Fixed Rate Portfolio             HTML    435K 
18: EX-10.5     Mortgage, Assignment of Leases & Rents, Security    HTML    339K 
                          Agreement and Fixture Filings                          
19: EX-10.5.1   Side Letter Agreement Related to Mortgage           HTML     80K 
20: EX-10.6     Master Repurchase and Securities Contract           HTML    572K 
                          Agreement                                              
21: EX-31.1     Section 302 CEO Certification                       HTML     15K 
22: EX-31.2     Section 302 CFO Certification                       HTML     16K 
23: EX-32.1     Section 906 CEO Certification                       HTML     12K 
24: EX-32.2     Section 906 CFO Certification                       HTML     12K 

Exhibit 10.2

Loan No. 31-0909757

LOAN AGREEMENT

by and between

THE ENTITIES SET FORTH ON SCHEDULE 1,

collectively, as Borrower

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

and

BANK OF AMERICA, N.A.,

collectively, as Lender

Dated as of: June 25, 2010

Dividend Capital Fixed Rate Office Portfolio

Document Prepared By:

Cadwalader, Wickersham & Taft LLP

227 West Trade Street

Charlotte, North Carolina 28202

Attention: James P. Carroll, Esq.

TABLE OF CONTENTS

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ii

EXHIBITS AND SCHEDULES

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iv

LOAN AGREEMENT

THIS LOAN AGREEMENT (this “Agreement”) is made and entered into June 25, 2010, by and between THE ENTITIES SET FORTH ON SCHEDULE 1 (each, a “Borrower” and, collectively, “Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, together with its successors and assigns, and BANK OF AMERICA, N.A., together with its successors and assigns (each, a “Co-Lender” and collectively, “Lender”).

R E C I T A L S

Borrower desires to borrow from Lender, and Lender agrees to loan to Borrower, the amounts described below pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, Borrower and Lender agree as follows:

ARTICLE 1. DEFINITIONS

Unless otherwise defined in the text of this Agreement, the capitalized terms generally used in this Agreement shall have the meanings defined or referenced in Exhibit A attached hereto and incorporated herein for all purposes.

ARTICLE 2. LOAN; LOAN DOCUMENTS; SECURITY

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Neither this Agreement, the Note nor any of the other Loan Documents shall be construed to require the payment or permit the collection of any interest or any late payment charge in excess of the maximum rate permitted by law. If any such excess interest or late payment charge is provided for under this Agreement, the Note or any of the other Loan Documents or if this Agreement, the Note or any of the other Loan Documents shall be adjudicated to provide for such excess, Borrower shall not be obligated to pay such excess notwithstanding any other provision of the Loan Documents. If Lender shall collect amounts which are deemed to constitute interest and which would increase the effective interest rate to a rate in excess of the maximum rate permitted by applicable law, all such amounts deemed to constitute interest in excess of the maximum legal rate shall, upon such determination, at the option of Lender, be returned to Borrower or credited against the outstanding principal balance of the Loan.

Borrower shall deliver to Lender concurrently with this Agreement each of the Loan Documents, properly executed and in recordable form, as applicable.

The Loan and all obligations of Borrower arising hereunder and under the other Loan Documents shall be secured by (i) the Mortgage creating a senior priority lien on the Property and the Collateral, (ii) the other Loan Documents and any security interests and liens created thereby, and (iii) the Impounds established pursuant to this Agreement. Notwithstanding the foregoing or anything contained in this Agreement or the other Loan Documents to the contrary, it is expressly understood and acknowledged by the parties hereto that neither the Guaranty nor the Hazardous Materials Indemnity Agreement shall constitute security for the Loan.

ARTICLE 3. BORROWER’S LIABILITY

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ARTICLE 4. IMPOUNDS

Borrower shall deposit with Lender the following amounts (collectively, “Tax Impound”): $134,748.00 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the real estate taxes and assessments payable by Borrower with respect to the Property (collectively, “Taxes”) at least thirty (30) days prior to each date on which Taxes become delinquent (“Delinquency Date”). The initial estimated monthly amount to be deposited by Borrower for Taxes on each Due Date is $40,374.00. If Lender reasonably determines at any time that the Tax Impound will not be sufficient to pay any Taxes at least thirty (30) days prior to the Delinquency Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Delinquency Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the Business Day immediately preceding the Delinquency Date. So long as no Default exists, Lender shall apply the Tax Impound to the payment of the Taxes. Deposits into the Tax Impound shall be waived, provided no Default is continuing, with respect to any Taxes which a tenant is required to pay directly to the taxing authority pursuant to the terms of its Lease, provided (i) Borrower delivers, or causes to be delivered to Lender, evidence of the timely payment of such Taxes, (ii) such tenant has exercised all applicable renewal terms under its Lease within the time such renewals are required to be exercised and (iii) such tenant is not in material default of its obligations under its Lease beyond all applicable notice and cure periods.

Borrower shall deposit with Lender the following amounts (collectively, “Insurance Impound”): $0 on the Disbursement Date, and on each Due Date thereafter commencing with the First P&I Due Date, an amount estimated from time to time by Lender in its reasonable discretion to be sufficient to pay the premiums for insurance required to be maintained by Borrower hereunder (“Insurance Premiums”) at least thirty (30) days prior to the date on which the current such insurance policies expire (“Insurance Expiration Date”). The initial estimated monthly amount to be deposited by Borrower for Insurance Premiums on each Due Date is $0. If Lender reasonably determines at any time that the Insurance Impound will not be sufficient to pay the Insurance Premiums at least thirty (30) days prior to the Insurance Expiration Date, Lender shall notify Borrower of such determination in writing and Borrower shall deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice; provided, however, if Borrower receives notice of any such deficiency less than thirty (30) days prior to the Insurance Expiration Date, Borrower shall deposit the amount of such deficiency with Lender not more than three (3) Business Days after Borrower’s receipt of such notice, but in no event later than the day immediately preceding the Insurance Expiration Date. So long as no Default exists, Lender shall apply the Insurance Impound to the payment of the Insurance Premiums. Deposits into the Insurance Impound shall be waived (i) for any Property covered by a blanket insurance policy which complies with the requirements of Article 12, and (ii) provided no Default is continuing, with respect to any Insurance Premiums which a tenant is required to pay directly to the insurance provider pursuant to the terms of its Lease, provided (x) Borrower delivers, or

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causes to be delivered to Lender, evidence of the timely payment of such Insurance Premiums, (y) such tenant has exercised all applicable renewal terms under its Lease within the time such renewals are required to be exercised and (z) such tenant is not in material default of its obligations under its Lease beyond all applicable notice and cure periods.

Borrower shall deposit with Lender any additional Impounds in the manner prescribed in Exhibit E attached hereto.

All deposits required to be made by Borrower under this Article 4, including, without limitation, the additional impounds set forth on Exhibit E attached hereto, if any, are herein collectively called “Impounds.” For so long as any of the Impounds required under this Section 4 are in effect and if Lender reasonably determines that an Impound was not estimated properly and a deficiency exists, Lender shall notify Borrower of such deficiency in writing and Borrower shall deposit or cause the applicable tenant to deposit with Lender the amount of such deficiency not more than ten (10) days after Borrower’s receipt of such notice. Lender shall have the right, upon prior advance written notice and subject to the tenant’s rights under its Lease, to enter upon the Property at all reasonable times, including without limitation, prior to any disbursement of Impounds, to inspect any work in process and/or completed for which Impounds are now or hereafter required, but Lender shall not be obligated to supervise or inspect any such work or to inform Borrower or any third party regarding any aspect of any such work. Borrower shall pay to Lender all reasonable out-of-pocket third party costs and expenses paid or incurred by Lender from time to time in connection with any request of Borrower for a disbursement of funds from the Impounds (other than the Tax Impound and the Insurance Impound). Borrower authorizes Lender to disburse directly to Lender, from the Impounds or from funds to be disbursed to Borrower from the Impounds, such sums as may be necessary, at any time and from time to time, to pay all such reasonable third-party costs and expenses.

As security for payment of the Loan and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, all Borrower’s right, title and interest in and to all Impounds. Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Impound (or account in which such Impounds are held), or permit any lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements to be filed thereon, except those naming Lender as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of a Default, Lender may apply all or any part of the Impounds against the amounts outstanding under the Loan in any order and in any manner as Lender shall elect in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the liens and security interests securing the Loan or exercise its other rights under the Loan

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Documents. The Impounds shall not constitute trust funds and may be commingled with other monies held by Lender. All interest which accrues on the foregoing Impounds except for the Tax Impound and the Insurance Impound (for which no interest shall be paid) shall be at a rate established by Lender or its servicing agent, which may or may not be the highest rate then available, shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment in full of Borrower’s obligations under the Loan Documents, all remaining Impounds, if any, shall be promptly disbursed to Borrower.

ARTICLE 5. REPRESENTATIONS AND WARRANTIES

As a material inducement to Lender’s entry into this Agreement, each Borrower, as to itself, represents and warrants to Lender as of the Effective Date:

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Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Section 5.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement and in the other Loan Documents shall be deemed to have been relied upon by Lender on the date hereof notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

Borrower hereby represents, warrants and covenants to Lender, with regard to Borrower, as follows:

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Failure of Borrower to comply with any of the covenants contained in Sections 5.2(a), (b) or (c) above or any other covenants contained in this Agreement shall not affect the status of Borrower as a separate legal entity.

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For purposes of this paragraph, a “special purpose entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of this Section 5.2.

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Reston VA Borrower (and Northrop VA Borrower in the event the Earn-Out Advance shall have been made) hereby represents that it:

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ARTICLE 6. HAZARDOUS MATERIALS

Simultaneously herewith, Borrower and Guarantor have executed and delivered to Lender the Hazardous Materials Indemnity Agreement, which Hazardous Materials Indemnity Agreement is not secured by the Mortgage.

ARTICLE 7. COVENANTS OF BORROWER

Borrower shall, within ten (10) Business Days of demand, pay Lender all reasonable, out-of-pocket third party costs and expenses incurred by Lender in connection with: (a) the preparation of this Agreement and all other Loan Documents contemplated hereby; (b) any modifications and amendments, if any, of this Agreement or any of the other Loan Documents; (c) the processing of any Borrower requests made hereunder and under any of the other Loan Documents; (d) the enforcement or satisfaction by Lender of any of Borrower’s obligations under this Agreement and the other Loan Documents; or (e) otherwise protecting Lender’s interests under this Agreement and any other Loan Document, including, without limitation, in connection with any “work-out” of the Loan or any bankruptcy, insolvency, receivership, reorganization, rehabilitation, liquidation or other similar proceeding in respect of any Obligor or an assignment by any Obligor for the benefit of its creditors. For all purposes of this Agreement, Lender’s reasonable costs and expenses as described above (collectively, “Costs and Expenses”) shall also include, without limitation, as allocable to the Loan, all appraisal fees, cost engineering and inspection fees, reasonable third party legal fees and expenses, third party accounting fees, fees for the disbursement of any Impounds as set forth in Section 4.5 hereof, environmental and other consultant fees, auditor fees, and the cost to Lender of any title insurance premiums and title company charges (including for down dates, abstracts, tax certificates, title insurance endorsements required by Lender, and UCC financing statements, tax lien and litigation searches), surveys, recording, reconveyance and notary fees, any transfer and mortgage taxes, any rating agency fees and expenses for the initial securitization of the Loan, and any loan servicing and special servicing fees and expenses (including, without limitation, any “work-out” and/or liquidation fees), any interest payable to any servicer, any special servicer or any trustee pursuant to a trust and servicing agreement in respect of advances made by any of the foregoing; all compensation payable to any special servicer in connection with servicing the Loan when it is a specially serviced loan or its administration of any of the Property foreclosed upon; and, except for the regular monthly fee payable to the servicer, any other cost, fee or expense of the trust fund administering the Loan (including, but not

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limited to, reimbursements to the trustee thereof, the servicer, any special servicer, any certificate administrator thereunder and related Persons of each of the foregoing and indemnification to Persons entitled thereto pursuant to any trust and servicing agreement governing the Loan, taxes related to the Loan or the Property payable from the assets of the applicable trust fund, tax related expenses (other than the recurring expenses of filing or furnishing annual or other tax or information returns, reports or schedules, which will be paid by any certificate administrator) and the cost of various opinions of counsel required to be obtained in connection with servicing the Loan and administration of the trust fund). Borrower recognizes and agrees that formal written appraisals of the Property by a licensed independent appraiser may be required by Lender’s internal procedures and/or federal regulatory reporting requirements on an annual and/or specialized basis and that Lender may, at its option, require inspection of the Property by an independent supervising architect and/or cost engineering specialist at least semiannually. If any of the services described above are provided by an employee of Lender, Lender’s costs and expenses for such services shall be calculated in accordance with Lender’s standard charge for such services. Notwithstanding the foregoing, Borrower shall not be required to pay for more than one appraisal (or for the aforementioned architect and cost engineering specialist more than once) during the term of the Loan unless a Default occurs and is continuing or as otherwise required by law. In addition, if Borrower is undertaking a Restoration or is performing Work that requires the obtaining of a building permit, then Borrower shall pay the reasonable out-of-pocket costs of architect’s, engineers and other consultants retained by Lender to review the performance of such Restoration or Work. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, whenever any term or provision in any Loan Document provides that Borrower (or Guarantor) shall pay Lender’s costs or expenses, such term or provision shall be deemed to mean that Borrower (or Guarantor) shall be responsible to pay only those third party out of pocket costs and expenses actually incurred by Lender.

Borrower shall at all times comply with the provisions of ERISA with respect to any retirement or other employee benefit plan to which it is a party as employer, and as soon as possible after Borrower knows, or has reason to know, that any Reportable Event (as defined in ERISA) with respect to any such plan of Borrower has occurred, it shall furnish to Lender a written statement setting forth details as to such Reportable Event and the action, if any, which Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event furnished to the Pension Benefit Guaranty Corporation.

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Unless consented to in writing by Lender or otherwise permitted under any other provision of the Loan Documents (or unless provided under any existing Leases), Borrower shall not:

The term “Major Lease,” as used herein, shall mean any Lease, which is, at any time, a Lease of more than twenty-five percent (25%) of the total rentable area of any Individual Property, as reasonably determined by Lender. Borrower’s obligations with respect to Major Leases shall be governed by the provisions of this Section 7.4.

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Lender may at any time and from time to time by specific written instrument intended for such purpose, unilaterally subordinate the lien of the Mortgage to any Lease, without joinder or consent of, or notice to, Borrower, any tenant or any other Person. No subordination referred to in this Section 7.6 shall constitute a subordination to any lien or other encumbrance, whenever arising, or improve the right of any junior lienholder. Nothing herein shall be construed as subordinating the Mortgage to any Lease.

Upon Lender’s reasonable request and at Borrower’s sole cost and expense, Borrower shall execute, acknowledge and deliver any other instruments and perform and/or consent to any other acts necessary, desirable or proper, as reasonably determined by Lender, to carry out the purposes of this Agreement and the other Loan Documents or to perfect and preserve any security interests or liens created by the Loan Documents; provided, however, that no such instruments shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. The foregoing covenant includes, without limitation, Borrower’s consent to the revision of any Loan Document in order to correct any scrivener, clerical or similar errors or to modify any term, condition or provision thereof in order to satisfy the provisions of this Section 7.7.

Without the prior written consent of Lender, Borrower shall not (except as otherwise permitted under Articles 14 and 15 hereof) assign Borrower’s interest under any of the Loan Documents, or in any monies due or to become due thereunder, and any assignment without such consent shall be void.

Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

Borrower shall (a) comply in all material respects with all applicable laws, and all restrictive covenants of record affecting Borrower or the Property, performance, prospects, assets or operations of Borrower, and (b) seek to obtain as needed all permits necessary for its operations and maintain such in good standing.

Borrower shall promptly notify Lender in writing of any litigation pending or threatened in writing against Borrower (which is not covered by insurance) claiming damages in excess of Two Hundred and Fifty Thousand and No/100 Dollars ($250,000.00) and of all pending or threatened (in writing) litigation against Borrower if the aggregate damage claims against Borrower exceed One Million and No/100 Dollars ($1,000,000.00).

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Without limiting Borrower’s obligations under Section 5.2, Article 14 and Article 15 of this Agreement, Borrower shall not: (a) merge or consolidate with any other entity; (b) make any substantial change in the nature of Borrower’s business or structure; (c) acquire all or substantially all of the assets of any other entity; or (d) sell, lease, assign, Transfer or otherwise dispose of a material part of Borrower’s assets, except in the ordinary course of Borrower’s business or as otherwise permitted hereunder (including under Section 7.4 and Article 15 hereof).

Borrower shall maintain adequate books and records in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably approved by Lender. Borrower shall permit any representative of Lender, at any reasonable time and from time to time during business hours, upon reasonable advance written notice (but not more frequently than one time per calendar year unless a Default shall be continuing), to inspect, audit and examine such books and records and make copies of same.

Borrower shall pay (or cause to be paid) (a) all taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon (unless Lender is paying the same pursuant to the terms hereof or unless Borrower is contesting any such taxes, assessments or other governmental charges in good faith pursuant to Section 16.7 herein) and (b) except to the extent being contested in good faith by appropriate proceedings and for which appropriate reserves (which may be funds then held as Impounds, as determined in Lender’s reasonable discretion) have been established, all claims (including, without limitation, claims for labor, services, materials and supplies) for sums, which have become due and payable and which by law have or may become a lien or encumbrance, other than a judgment lien, upon any of Borrower’s properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto.

Borrower shall maintain (or cause to be maintained) in good repair, working order and condition in all material respects, excepting ordinary wear and tear, the Property and will make or cause to be made all appropriate repairs, renewals and replacements thereof.

Borrower shall qualify and remain qualified to do business in the jurisdiction in which the Property is located or in which the nature of its business requires it to be so qualified. Borrower will transact business solely in its own name. Borrower will not change its name, address or state of organization without giving prior written notice thereof to Lender. Borrower shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority.

Lender’s prior approval (which approval shall not be unreasonably withheld or delayed) shall be required in connection with any alterations to any Improvements (a) that would be reasonably expected to have a Material Adverse Effect, (b) the cost of which in the aggregate with all ongoing alterations is reasonably anticipated to exceed the Alteration Threshold or (c) that are structural in nature, except in each case for alterations or tenant improvements being made expressly pursuant to existing Leases entered into pursuant to Section 7.4 or existing as of the date hereof (and as such are deemed approved by Lender). If the total unpaid amounts incurred and to be incurred with respect to any alterations to the Improvements under

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subsection (b) above shall at any time exceed the Alteration Threshold (other than Improvements for which Borrower has deposited Impounds as required hereunder), Borrower shall, if required in writing by Lender, promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (i) cash, (ii) U.S. Obligations, (iii) other securities acceptable to Lender, or (iv) a completion bond acceptable to Lender. Such security shall be in an amount equal to the excess of the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements over the Alteration Threshold. In addition to Borrower’s obligation to post security if the alteration exceeds the Alteration Threshold, Borrower shall deliver to Lender title coverage reasonably acceptable to Lender to insure Lender for any mechanic’s liens filed in connection with such alteration to the extent such title coverage is available at a reasonable cost in the jurisdiction in which the Property is located. Any such security or excess funds shall be disbursed to Borrower to pay or reimburse Borrower for completed work related to such alterations, provided Borrower complies with the requirements for disbursements for work as set forth in Section 4.4.4(d) of Exhibit E (such work being performed in connection with such alterations being deemed “Work” in Section 4.4.4(d) of Exhibit E only for the purposes of disbursements pursuant to this Section 7.17). All such security or excess funds remaining after completion of the alteration shall be promptly returned to Borrower.

Borrower covenants and agrees that in the event Borrower receives any notice that Borrower, SPE Party, Guarantor, any property manager (if such property manager is an Affiliate of Borrower) (or any of their respective beneficial owners, affiliates or participants) or any Person that has an interest in the Property (including, without limitation, any tenant at the Property) become listed on any list promulgated under the Patriot Act or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall immediately notify Lender. At Lender’s option, it shall be a Default hereunder if Borrower, SPE Party or Guarantor becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering.

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance written notice subject to the tenant’s rights under the applicable Lease.

Borrower shall promptly advise Lender of any Material Adverse Effect or of the occurrence of any Default of which Borrower has knowledge.

Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the Note, the Mortgage or the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Borrower shall (a) in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement, the Mortgage, the Note and the other Loan Documents and (b) in a timely manner observe, perform and fulfill, in all material respects, its material obligations under any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications of changes thereto.

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TROP shall at all times be operated by an experienced professional advisory firm (or have internal management similar to what an advisory firm provides) regularly engaged in the operation and advisement of real estate investment trusts similar in experience and expertise to TRT.

Borrower shall not consent to initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

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Borrower agrees that, without the prior consent of Lender, Borrower will not enter into any new REA or execute modifications to any existing REA if such new REA or such modifications will have a Material Adverse Effect. Borrower shall enforce, shall comply with, and shall use commercially reasonable efforts to cause each of the parties to each REA to comply with all of the terms and conditions contained in such REA.

Within one hundred eighty (180) days of the date hereof, Borrower shall complete the repairs and replacements as described on Exhibit E-1 attached hereto (the “Deferred Maintenance”). Notwithstanding the foregoing, for those items set forth on Exhibit E-1 and identified as “Tenant Responsibility”, Borrower shall not be required to complete the Deferred Maintenance itself, but shall be required to enforce the terms of the applicable Lease to cause the tenant under such Lease to perform such repairs as and when required pursuant to the terms of the applicable Lease.

At all times while the Mezzanine Loan or any New Mezzanine Loan shall be in existence, the loan-to-cost ratio (calculated as the quotient of (i) the sum of (A) the outstanding principal balance of the Loan and (B) the outstanding principal balance of the Mezzanine Loan or the New Mezzanine Loan, as applicable, and (ii) the purchase price of all Properties) shall not exceed sixty-two percent (62%).

ARTICLE 8. FINANCIAL COVENANTS

During the term of the Loan and while any portion of the Debt remains outstanding, unless Lender otherwise consents in writing or, if prior to a Securitization or during the continuance of a Default, requests on a more frequent basis, Borrower shall provide to Lender the following:

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Borrower agrees that all financial statements to be delivered to Lender pursuant to this Article 8 shall: (a) be complete and correct in all material respects; (b) present fairly the financial condition of the party; (c) disclose all liabilities that are required to be reflected or reserved against; and (d) be prepared in accordance with the same accounting standard used by Borrower to prepare the financial statements delivered to and approved by Lender in connection with the making of the Loan or other accounting standards reasonably acceptable to Lender. By its execution of this Agreement, Borrower shall be deemed to warrant and represent that, as of the date of delivery of any such financial statement, there has been no change in financial condition which would have a Material Adverse Effect, nor have any assets or properties been sold, transferred, assigned, mortgaged, pledged or encumbered since the date of such financial statement which would have a Material Adverse Effect, except as disclosed by Borrower in a writing delivered to Lender. Borrower agrees that all rent rolls and other information to be delivered to Lender pursuant to this Article 8 shall not contain any misrepresentation or omission of a material fact.

If any financial statement, leasing schedule or other items required to be delivered to Lender pursuant to this Article 8 is not timely delivered, following written notice from Lender to Borrower, and such failure continues after ten (10) days of such written notice from Lender, Borrower shall promptly pay to Lender, as a late charge, the sum of One Thousand and No/100 Dollars ($1,000) per item. In addition, Borrower shall promptly pay to Lender an additional late charge of Five Hundred and No/100 Dollars ($500.00) per item for each full month during which such item remains undelivered following written notice from Lender. Borrower acknowledges that Lender will incur additional expenses as a result of any such late deliveries, which expenses would be impracticable to quantify, and that Borrower’s payments under this Article 8 are a reasonable estimate of such expenses. Borrower acknowledges further that payment by Borrower of this late charge does not in any manner affect or otherwise impair or waive any rights and remedies Lender may have hereunder, under the Loan Documents or under applicable law for any Default.

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ARTICLE 9. DEFAULTS AND REMEDIES

For all purposes hereof, “Default” shall mean either an “Optional Default” (as defined below) or an “Automatic Default” (as defined below).

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Upon the occurrence of an Optional Default, Lender may, at its option (exercised in its sole and absolute discretion), declare all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) immediately due and payable. Upon the occurrence of an Automatic Default, all principal, interest and other sums owing to Lender under the Note and the other Loan Documents (including, without limitation, all unpaid or unreimbursed Costs and Expenses) shall automatically become immediately due and payable.

In addition to the other rights and remedies above and otherwise in this Agreement, at any time after a Default, Lender shall have all of the rights and remedies as set forth in the Mortgage, the other Loan Documents, under applicable law and in equity. All rights and remedies of Lender under this Agreement and the other Loan Documents are cumulative and are in addition to all rights and remedies provided by applicable law and in equity. Lender may enforce any such remedies or rights either successively or concurrently.

ARTICLE 10. NO PREPAYMENT - DEFEASANCE ONLY

Borrower acknowledges that any prepayment of the Loan will cause Lender to lose its interest rate yield on the Loan and will possibly require that Lender reinvest any such prepayment amount in loans of a lesser interest rate yield (including, without limitation, in debt obligations other than first mortgage loans on commercial properties). As a consequence, Borrower agrees as follows, as an integral part of the consideration for Lender’s making the Loan:

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ARTICLE 11. DEFEASANCE - FULL OR PARTIAL.

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ARTICLE 12. INSURANCE

Throughout the term of the Loan, Borrower shall maintain the following types of insurance in the form and content as set forth in this Article 12.

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In addition to the foregoing, Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) such additional insurance policies and coverage (i) as may be required pursuant to any and all agreements, declarations, covenants, and/or other arrangements to which Borrower is party or to which Borrower or the Property is subject, including, without limitation, any declarations of covenants, conditions and restrictions or similar covenants and/or restrictions affecting the Property, franchise agreements, licenses, leases, codes or ordinances, (ii) as set forth on Exhibit G attached hereto, and (iii) such other insurance as may from time to time be reasonably required by Lender in order to protect its interests and/or to satisfy then current market conditions and requirements.

The Casualty Policy, the Liability Policy and each other insurance policy required hereunder (each, a “Policy” and, collectively, the “Policies”) shall:

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Borrower shall:

Borrower shall at all times obtain and maintain (or cause to be obtained and maintained) coverage for Acts of Terror (the “Terrorism Coverage”), which such Terrorism Coverage shall comply with each of the applicable requirements for the Policies set forth above (including, without limitation, those relating to deductibles, except as otherwise agreed to by Lender in its sole and absolute discretion). As used herein, the term “Terrorism Coverage” shall mean coverage for Acts of Terror. As used above, “Acts of Terror” shall mean acts of terror or similar acts of sabotage; provided, that, for so long as the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (as the same may be further modified, amended, or extended, collectively, “TRIPRA”), remains in full force and effect, the provisions of TRIPRA shall determine what is deemed to be included within this definition of “Acts of Terror”. Notwithstanding the foregoing, in no event shall Borrower be required to pay annual premiums in excess of the TC Cap (defined below) in order to obtain the Terrorism Coverage (but Borrower shall be obligated to purchase such portion of the Terrorism Coverage as is obtainable by payment of annual premiums equal to the TC Cap). As used above, “TC Cap” shall mean a premium in an amount to provide coverage equal to the outstanding principal balance of the Loan.

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Borrower shall restore and repair (or shall cause the restoration and repair of) the Property or any part thereof now or hereafter damaged or destroyed by any Casualty or affected by any Taking; provided, however, that if the Casualty is not insured against or insurable, Borrower shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in Section 12.7, Lender agrees that Lender shall make the Net Restoration Proceeds (other than business interruption insurance proceeds, which shall be held and disbursed as provided in Section 12.7) available to Borrower for Borrower’s restoration and repair of the Property affected by the Casualty or Taking (a “Restoration”), as applicable, on the following terms and subject to Borrower’s satisfaction of the following conditions; provided, that Lender shall have the right to waive any of the following conditions in its sole and absolute discretion:

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ARTICLE 13. INDEMNITY

BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS AND ASSIGNS (EACH, AN “INDEMNITEE”) FROM AND AGAINST ANY AND ALL ACTUAL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND REASONABLE LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH LENDER OR SUCH OTHER INDEMNITEE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS, COVENANTS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR, SUBCONTRACTOR OR MATERIALS SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS, OR LEGAL OR OTHER EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. BORROWER SHALL PROMPTLY PAY TO LENDER UPON DEMAND (WHICH DEMAND SHALL BE GIVEN PROMPTLY PROVIDED FAILURE TO PROMPTLY DELIVER SUCH DEMAND SHALL NOT ADVERSELY AFFECT LENDER’S RIGHTS HEREUNDER) ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF ANY SECURITY FOR THE LOAN.

Upon written request by any Indemnitee, Borrower shall defend such Indemnitee (if requested by any Indemnitee, in the name of the Indemnitee) by attorneys and other professionals approved by the Indemnitee. Notwithstanding the foregoing, any Indemnitee may, in their sole discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnitee, their attorneys shall control the resolution of any claim or proceeding (other than a settlement thereof, which will require the prior written consent of Borrower). Upon demand, Borrower shall pay or, in the sole discretion of the Indemnitee, reimburse, the Indemnitee for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each Indemnitee from and against any and all Losses imposed upon or incurred by or asserted against any Indemnitee and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents.

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Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnitee from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Indemnitee may incur, directly or indirectly, as a result of a default under Sections 5.1(i) and 7.2 of this Agreement.

Borrower shall pay all reasonable special servicing fees relating the transfer of the Loan to special servicing at any time during the term of the Loan and for so long as the Loan is in special servicing. The obligations of Borrower set forth in this Section 13.5 are limited to the Borrower and Guarantor shall have no liability to Lender hereunder.

ARTICLE 14. TRANSFER AND SUBSTITUTION OF PROPERTY

Notwithstanding anything to the contrary contained in the Mortgage, Lender shall consent to the voluntary sale or exchange of all (but not a portion) of the Property by Mortgagor and an assumption of the Loan by the transferee no more than three (3) times so long as no Default has occurred and is continuing and all of the following conditions precedent have been satisfied:

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Lender shall fully release Borrower and each existing Guarantor from any further obligation or liability to Lender under this Agreement and the other Loan Documents upon the assumption by the purchaser and each new guarantor of all of Borrower’s and each Guarantor’s obligations and liabilities hereunder and under the Loan Documents and the satisfaction of all other conditions precedent to a sale or exchange in accordance with the provisions of this Article 14.

Notwithstanding the foregoing or anything herein to the contrary, Borrower may not exercise its rights pursuant to this Article 14 during the period that commences on the date that is sixty (60) days prior to the date of any intended securitization of the Loan and ending on the date that is sixty (60) days after the date of such securitization of the Loan.

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(A) the purchase option granted with respect to the Northrop VA Property shall have been exercised;

(B) all conditions to substitute the Northrop VA Property in the Mezzanine Loan Agreement shall have been satisfied;

(C) the Maturity Date shall have not occurred.

(D) Lender shall have received at least forty-five (45) days prior written notice requesting the substitution and identifying the Substitute Property.

(E) Lender shall have received a copy of a deed conveying all of Borrower’s right, title and interest in and to the Substituted Property to an entity other than Borrower pursuant to the purchase option with respect to the Northrop VA Property and a letter from Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Substituted Property is located.

(F) Lender shall have received a fee in the amount of one quarter of one percent (0.25%) of the Release Price for the Substituted Property.

(G) If the Loan is part of a Securitization, Lender shall have received an appraisal of the Substitute Property, dated no more than sixty (60) days prior to the substitution date, by an appraiser reasonably acceptable to the Rating Agencies.

(H) The fair market value of the Substitute Property shall not be less than one hundred five percent (105%) of the greater of (A) the fair market value of the Substituted Property as of the Disbursement Date and (B) the fair market value of the Substituted Property as of the date immediately preceding the substitution, which determination shall be made by (I) Lender in its reasonable discretion if the Loan is not part of a Securitization and (II) Lender based on the appraisals delivered pursuant to clause (G) above if the Loan is part of a Securitization.

(I) After giving effect to the substitution, the Debt Yield for the Loan for all of the Properties (excluding the Substituted Property and including the Substitute Property) is not less than the greater of (i) the Closing Date Debt Yield and (ii) the Debt Yield for the Loan for all of the Properties as of the date immediately preceding the substitution.

(J) The Adjusted Actual Net Operating Income for the Substitute Property as of the date of the substitution is greater than the Adjusted Actual Net Income for the Substitute Property of any of the prior three (3) years.

(K) The Adjusted Actual Net Operating Income for the Substitute Property is greater than one hundred five percent (105%) of the Adjusted Actual Net Operating Income for the Substituted Property.

(L) If the Loan is part of a Securitization, Lender shall have received (with Lender’s assistance) confirmation in writing from the Rating Agencies to the effect that such substitution will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such substitution for the securities, or any class thereof, issued in connection with the Securitization that are then outstanding. If the Loan is not part of a Securitization, Lender shall have consented in writing to such substitution, which consent shall not be unreasonably withheld.

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(M) No Default shall have occurred and be continuing and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each Loan Document on Borrower’s part to be observed or performed. Lender shall have received a certificate from Borrower confirming the foregoing, stating that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the substitution with respect to Borrower, the Properties and the Substitute Property and containing any other representations and warranties with respect to Borrower, the Properties, the Substitute Property or the Loan as the Rating Agencies may reasonably require, unless such certificate would be inaccurate, such certificate to be in form and substance reasonably satisfactory to the Rating Agencies.

(N) Borrower shall (A) have executed, acknowledged and delivered to Lender (I) such security instruments and UCC-1 financing statements with respect to the Substitute Property as Lender may reasonably require, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such security instruments and financing statements and agreeing to record or file, as applicable, such security instruments and financing statements in the appropriate recording or filing offices so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents and (II) a hazardous substances indemnity agreement with respect to the Substitute Property and (B) have caused the Guarantor to acknowledge and confirm their respective obligations under the Loan Documents. The required security documents, financing statements and other documents shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Substituted Property subject to modifications reflecting only the Substitute Property as the property that is the subject of such documents and such modifications reflecting the laws of the state in which the Substitute Property is located as are customarily delivered in similar transactions in such state and delivering the opinion as to the enforceability of such documents required pursuant to clause (T) below. The security instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such security instrument shall be equal to one hundred twenty-five percent (125%) of the allocated loan amount of the Substitute Property. The amount of the Loan allocated to the Substitute Property (such amount being hereinafter referred to as the “Substitute Release Price”) shall equal an amount equal to fifteen percent (15%) of the then current principal balance of the Loan.

(O) Lender shall have received (A) to the extent available any “tie-in” or similar endorsement to each title insurance policy insuring the Lien of an existing Mortgage as of the date of the substitution with respect to the title insurance policy insuring the Lien of the Mortgage with respect to the Substitute Property and (B) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) insuring the Lien of the Mortgage encumbering the Substitute Property, issued by the title company that issued the title insurance policies insuring the Lien of the existing Mortgages (or any other reputable national title insurance company approved by Lender) and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the title insurance policy insuring the Lien of the Mortgage encumbering the Substituted Property. The title insurance policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Substitute Release Price if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Substitute Release Amount, (2) insure Lender that the relevant Mortgage creates a

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valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such endorsements and affirmative coverages as are then available and are contained in the title insurance policies insuring the Liens of the existing Mortgages, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts or other evidence showing that all premiums in respect of such endorsements and title insurance policies have been paid.

(P) Lender shall have received a current survey for the Substitute Property, certified to the title company and Lender and their successors and assigns, in the same form and having the same content as the certification of the survey of the Substituted Property prepared by a professional land surveyor licensed in the state in which the Substitute Property is located and acceptable to the Rating Agencies. Such survey shall reflect the same legal description contained in the title insurance policy relating to such Substitute Property and shall include, among other things, a metes and bounds description of the real property comprising part of such Substitute Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each survey and each survey shall certify that the surveyed property is not located in a “one-hundred-year flood hazard area.”

(Q) Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for a Property hereunder have been satisfied with respect to the Substitute Property and evidence of the payment of all premiums payable for the existing policy period.

(R) Lender shall have received a Phase I environmental report from an environmental consultant that typically provides such reports to Lender, and, if recommended under the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any hazardous materials and is not subject to any risk of contamination from any off-site hazardous materials. If any such report discloses the presence of any hazardous materials or the risk of contamination from any off-site hazardous materials, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there are no longer any hazardous materials on the Substitute Property or any danger of contamination from any off-site hazardous materials that has not been fully remediated and (B) paid receipts indicating that the costs of all such remediation work have been paid.

(S) Borrower shall deliver or cause to be delivered to Lender (A) updates certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender on the Disbursement Date; (B) good standing certificates, certificates of qualification to do business in the jurisdiction in which the Substitute Property is located (if required in such jurisdiction); and (C) resolutions of Borrower authorizing the substitution and any actions taken in connection with such substitution.

(T) Lender shall have received the following opinions of Borrower’s counsel: (A) an opinion or opinions of counsel admitted to practice under the laws of the state in which the Substitute Property is located stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (N) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles, and that Borrower is qualified to do business and in good standing under the laws of the jurisdiction where the Substitute Property is located or that Borrower is not required by applicable law to qualify to do business in such jurisdiction; (B) an opinion of counsel acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (N)

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above were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any agreement, document or instrument to which Borrower is a party or to which it or its properties are bound; (C) an opinion of counsel acceptable to, the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that subjecting the Substitute Property to the Lien of the related Mortgage and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Lender to enforce its remedies under all of the Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder; (D) an update of the Non-Consolidation Opinion indicating that the substitution does not affect the opinions set forth therein; (E) an opinion of counsel acceptable to, the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the substitution and the related transactions are arms length transactions and do not constitute a fraudulent conveyance under applicable bankruptcy and insolvency laws and (F) if the Loan is part of a Securitization, an opinion of counsel acceptable to the Rating Agencies that the substitution does not constitute a “significant modification” of the Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust.

(U) Borrower shall have paid, or escrowed with Lender, all due and payable insurance premiums (unless the Property is covered by a blanket insurance policy), taxes and other charges relating to each of the Properties and the Substitute Property, including without limitation, (i) accrued but unpaid insurance premiums relating to each of the Properties and the Substitute Property, and (ii) currently due and payable Taxes (including any in arrears) relating to each of the Properties and the Substitute Property and (iii) currently due and payable maintenance charges and other impositions relating to each of the Properties and Substitute Property. Any Impounds or other amounts held by Lender with respect to the Substituted Property shall, at the Borrower’s election, be applied to (i) amounts payable by Borrower in connection with this Section 14.2(U), (ii) returned to Borrower, or (iii) or applied to other amounts due and payable by Borrower under this Agreement.

(V) Borrower shall have paid or reimbursed Lender for all reasonable third party costs and expenses actually incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the substitution and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all reasonable costs and expenses of the Rating Agencies incurred in connection with the substitution.

(W) Lender shall have received annual operating statements and occupancy statements for the Substitute Property for the most current completed fiscal year and a current operating statement for the Substituted Property, each certified (to Borrower’s knowledge) to Lender as being true and correct in all material respects and a certificate from Borrower certifying (to Borrower’s knowledge) that there has been no material adverse change in the financial condition of the Substitute Property since the date of such operating statements.

(X) Borrower shall have delivered to Lender estoppel certificates from any existing tenants of the Substitute Property. All such estoppel certificates shall be substantially in the form approved by Lender in connection with the origination of the Loan and shall indicate that (1) the subject lease is a valid and binding obligation of the tenant thereunder, (2) there are no material defaults under such lease on the part of the landlord or tenant thereunder, (3) the tenant thereunder has no defense or offset to the payment of rent under such leases, (4) no rent under such lease has been paid more than one (1) month in advance, (5) the tenant thereunder has no option under such lease to purchase all or any portion of the Substitute Property, unless the lowest possible purchase price for such option to purchase exceeds the Release Price of the Substituted Property, and (6) all tenant improvement work required under such lease has been completed and the tenant under such lease is in actual occupancy of its leased premises. If an estoppel certificate indicates that all

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tenant improvement work required under the subject lease has not yet been completed, Borrower shall, if required by the Rating Agencies, deliver to Lender financial statements indicating that Borrower has adequate funds to pay all costs related to such tenant improvement work as required under such lease. In lieu of estoppel certificates delivered by tenants, Borrower may execute and deliver estoppel certificates with respect to such Leases for Leases of not more than 10% (in the aggregate) of the total square footage of the Substitute Property.

(Y) Lender shall have received copies of all tenant leases affecting the Substitute Property certified to Borrower’s knowledge as being true and correct.

(Z) Lender shall have received subordination, nondisturbance and attornment agreements in the form approved by Lender in connection with the origination of the Loan with respect to tenants designated by Lender at the Substitute Property.

(AA) Lender shall have received (A) an endorsement to the title insurance policy insuring the Lien of the Mortgage encumbering the Substitute Property insuring that the Substitute Property constitutes a separate tax lot or, if such an endorsement is not available in the state in which the Substitute Property is located, a letter from the title insurance company issuing such title insurance policy stating that the Substitute Policy constitutes a separate tax lot or (B) a letter from the appropriate taxing authority stating that the Substitute Property constitutes a separate tax lot (or other evidence with respect thereto).

(BB) Lender shall have received a physical conditions report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable legal requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of material damage or waste. If compliance with any legal requirements are not addressed by the physical conditions report, such compliance shall be confirmed by delivery to Lender of a certificate of an architect licensed in the state in which the Substitute Property is located, a letter from the municipality in which such Property is located, a certificate of a surveyor that is licensed in the state in which the Substitute Property is located (with respect to zoning and subdivision laws), an ALTA 3.1 zoning endorsement to the title insurance policy delivered pursuant to clause (O) above (with respect to zoning laws) or a subdivision endorsement to the title insurance policy delivered pursuant to clause (O) above (with respect to subdivision laws). If the physical conditions report recommends that any repairs be made with respect to the Substitute Property, such physical conditions report shall include an estimate of the cost of such recommended repairs and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such physical conditions report or a letter from the engineer that prepared such physical conditions report indicating that the recommended repairs were completed in good and workmanlike manner and (B) paid receipts indicating that the costs of all such repairs have been paid.

(CC) Lender shall have received a certified copy of the management agreement reflecting the Substitute Property as a property managed pursuant thereto and Manager shall have executed and delivered to Lender a consent and subordination agreement with respect to such management agreement in the same form as delivered to Lender on the Disbursement Date.

(DD) Lender shall have received such other and further approvals, opinions, documents and information in connection with the substitution as reasonably requested by the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization.

(EE) Lender shall have received copies of all contracts and agreements relating to the leasing and operation of the Substitute Property together with a certification of Borrower attached to each such contract or agreement certifying that the attached copy is a true and correct copy of such contract or agreement and all amendments thereto.

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(FF) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such substitution, a release of Lien (and related Loan Documents) for the Substituted Property for execution by Lender. Such release shall be in a form appropriate for the jurisdiction in which the Substituted Property is located. Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 14.2 have been satisfied.

(GG) The weighted average Lease terms at the Substitute Property based on Net Operating Income shall extend no less than three (3) years beyond the Maturity Date.

(HH) Upon the satisfaction of the foregoing conditions precedent, Lender will release its Lien from the Substituted Property to be released and the Substitute Property shall be deemed to be a Property for purposes of this Agreement and the Substitute Release Price with respect to such Substitute Property shall be deemed to be the Release Price with respect to such Substitute Property for all purposes hereunder.

ARTICLE 15. DUE ON SALE/ENCUMBRANCE

“Restricted Party” shall mean each of (i) Borrower, (ii) any SPE Party, (iii) any Intermediate Holdco, (iv) any Holdco, (v) Guarantor, and (vi) any shareholder, partner, member or non-member manager, or any direct legal or beneficial owner of Borrower, SPE Party, Intermediate Holdco, Holdco or Guarantor.

“Transfer” shall mean any sale, installment sale, exchange, mortgage, pledge, hypothecation, assignment, encumbrance or other transfer, conveyance or disposition, whether voluntarily, involuntarily or by operation of law or otherwise (but excluding Leases).

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(A) a sale, transfer or assignment (each, a “Transfer”) by holders of direct or indirect interests in Borrower (each an “Interest Holder”) as of the Disbursement Date (including, without limitation, those interests held, directly or indirectly, by Dividend Capital Total Realty Trust Inc. (“TRT”) or Dividend Capital Total Realty Operating Partnership LP (“TROP”)) to another person or entity who is not an Interest Holder, provided, however, that (i) after taking into account any prior Transfers pursuant to this sentence, whether to the proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control (as hereinafter defined) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days after the date of such Transfer; and (iii) no Default shall have occurred and is continuing;

(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in TRT, or (ii) any operating partnership units in TROP, provided, however, that TRT and TROP shall continue to (x) Control (as defined in clause (ii) in the definition of Control) directly or indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower;

(C)(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in TRT or TROP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of TRT or TROP, (iii) the listing of the securities in TRT or TROP on a national securities exchange, (iv) the conversion of TRT or TROP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of any Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection

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with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of TRT or TROP, as applicable, then Borrower must satisfy each of the applicable conditions relating to an assumption of the Loan by a new transferee pursuant to the applicable section within the Loan Agreement;

(D) subject to clause (C) above, a sale, issuance or Transfer of shares or other securities of TRT or any of its affiliates, which are listed on any national securities exchange; and

(E)(1) the closing of the Mezzanine Loan and the execution and delivery of all of the Mezzanine Loan Documents and the performance of all of the obligations thereunder by Mezzanine Borrower and any other parties thereto and (2) foreclosure (or deed in lieu of foreclosure) by Mezzanine Lender of any direct or indirect membership interests of Borrower under any pledge agreement under the Mezzanine Loan, including under the Mezzanine Pledge Agreement.

Notwithstanding anything to contrary contained in this Agreement, certain owners of Borrower shall be permitted to obtain mezzanine financing (the “New Mezzanine Loan”) upon the repayment in full of the Mezzanine Loan, which New Mezzanine Loan shall be secured by the membership or partnership interests in Borrower or the direct or indirect owners of Borrower, subject to the following conditions and requirements:

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The final capital structure of the New Mezzanine Loan is subject in all respects to Lender’s reasonable approval and the Rating Agencies’ approval, including, without limitation, the organizational structure of Borrower.

ARTICLE 16. MISCELLANEOUS PROVISIONS

The form and substance of all documents, instruments, and forms of evidence to be delivered to Lender under the terms of this Agreement and any of the other Loan Documents shall (unless expressly set forth to the contrary) be subject to Lender’s approval as more particularly set forth hereunder and under the other Loan Documents and shall not be modified, superseded or terminated in any respect without Lender’s prior written approval.

No Person other than Lender and Borrower (and Guarantor with respect to the Guaranty) and their respective permitted successors and assigns shall have any right of action under any of the Loan Documents.

All notices, demands, or other communications under this Agreement and the other Loan Documents shall be in writing and shall be delivered to the appropriate party at the address set forth on the signature page of this Agreement (subject to change from time to time by written notice to all other parties to this Agreement). All notices, demands or other communications shall be considered as properly given if delivered personally or sent by certified mail, return receipt requested, or by overnight express mail or by overnight commercial courier service, charges prepaid. Notices so sent shall be effective upon receipt; provided, however, that non-receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication.

Borrower grants authorization to Lender to perform credit investigation on Borrower, Guarantor and other Affiliates of Borrower from time to time over the term of the Loan at Lender’s expense.

Borrower hereby irrevocably appoints and authorizes Lender, as Borrower’s attorney-in-fact, after the occurrence and during the continuance of a Default, which agency is coupled with an interest, to execute and/or record at any time hereafter and during the term of the Loan in Lender’s or Borrower’s name any notices, instruments or documents that Lender reasonably deems necessary to protect or otherwise perfect Lender’s interest under any of the Loan Documents.

Borrower agrees that Lender, in exercising the rights, duties or liabilities of Lender or Borrower under the Loan Documents, may (upon prior consultation with Borrower) commence, appear in or defend any action or proceeding which is reasonably likely to have a Material Adverse Effect on the Property or the Loan Documents, and Borrower shall reimburse Lender upon demand for all such reasonable expenses so incurred or paid by Lender, including, without limitation, reasonable attorneys’ fees and expenses and court costs; provided that Section 16.10 shall apply with respect to disputes between Lender and Borrower.

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Borrower may contest in good faith any claim, demand, levy or assessment by any Person other than Lender which would constitute a Default if: (a) Borrower pursues the contest diligently, in a manner which Lender determines (in its reasonable discretion) is not prejudicial to Lender, and does not impair in any material respect the rights of Lender under any of the Loan Documents; and (b) Borrower deposits with Lender any funds or other forms of assurance (which may include funds then held as Impounds, as determined in Lender’s reasonable discretion) which Lender in good faith determines from time to time appropriate to protect Lender from the consequences of the contest being unsuccessful. Borrower’s compliance with this Section shall operate to prevent such claim, demand, levy or assessment from becoming a Default.

The relationship of Borrower and Lender under the Loan Documents is, and shall at all times remain, solely that of borrower and lender, and Lender neither undertakes nor assumes any responsibility or duty to Borrower or to any third party with respect to the Property, except as expressly provided in this Agreement and the other Loan Documents.

Lender shall not be liable in any way to Borrower or any third party for Lender’s failure to perform or delay in performing under the Loan Documents (and Lender may suspend or terminate all or any portion of Lender’s obligations under the Loan Documents) if such failure to perform or delay in performing results directly or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because of war, rebellion, insurrection, strike, lockout, boycott or blockade (whether presently in effect, announced or in the sole judgment of Lender deemed probable), or from any act of God or other cause or event beyond Lender’s control, provided that Lender provides prompt written notice of any such aforementioned event to Borrower. The limitation on Lender’s liability under this Section 16.9 shall be effective only during the continuance of any such aforementioned event.

If any attorney is engaged by Lender to enforce or defend, against Borrower, any SPE Party, Guarantor, Mezzanine Lender or any of their Affiliates, agents or representatives, any provision of this Agreement and/or any of the other Loan Documents, or as a consequence of any Default under the Loan Documents, with or without the filing of any legal action or proceeding, and including, without limitation, any reasonable fees and expenses incurred in connection with any “work-out” of the Loan or bankruptcy proceeding of Borrower, then Borrower shall pay to Lender, upon demand, the amount of all reasonable costs and expenses incurred by Lender in connection therewith (including reasonable attorneys’ fees and any then reasonable and customary loan servicing and/or special servicing fees applicable to the Loan (including, without limitation any reasonable “work-out” and/or liquidation fees)), together with interest thereon from the date of such demand until paid at the Default Rate; provided that, if any action is commenced in connection with any of the foregoing, the party who is determined to be the prevailing party in such action shall be entitled to be paid, and the non-prevailing party shall pay to the prevailing party, all reasonable attorneys’ fees and interest thereon as noted above as fixed by the court. As used herein the term “prevailing party” shall mean the party which obtains the principal relief it has sought, whether by compromise settlement or judgment. If the party which commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.

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Unless otherwise expressly provided for in this Agreement, all amounts payable by Borrower to Lender shall be payable only in United States currency in immediately available funds.

Borrower hereby acknowledges that Lender may in one or more transactions (a) sell or securitize the Loan or portions thereof in one or more transactions through the issuance of securities, which securities may be rated by the Rating Agencies, (b) sell or otherwise transfer the Loan or any portion thereof one or more times (including selling or assigning its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee), (c) sell participation interests in the Loan one or more times (d) re-securitize the securities issued in connection with any securitization, and/or (e) further divide the Loan into two or more separate notes, including senior and junior notes, or components (the transactions referred to in clauses (a) through (e) above, each a “Secondary Market Transaction” and collectively “Secondary Market Transactions”). With respect to any Secondary Market Transaction described in clause (e) above, (i) such notes and note components may be assigned different principal amounts and interest rates, so long as (x) at all times prior to a Default, the weighted average of the interest rates payable under the Loan and such component notes(s), equals the Interest Rate as of the closing of the Loan and (y) immediately after the effective date of such modification, the aggregate amount of the outstanding principal balance under such component notes equals the outstanding principal balance of the Loan immediately prior to such modification, and (ii) Borrower, at Lender’s cost and expense, agrees to execute and deliver to Lender such non-material amendments to the Loan Documents, title insurance endorsements, legal opinions and other customary loan documentation as Lender may reasonably require in connection therewith, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents. Provided that all such recipients of any such documentation or information keep the same confidential (except that, in the case of a public securitization, information may be disclosed to the extent required by federal securities laws), Lender may disseminate to any actual or potential purchasers, assignees or participants (and to any investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable sale, assignment, participation, securitization, or other secondary market transaction) all documents and financial and other information then possessed by or known to Lender with respect to: (a) the Property and its operation; and (b) Borrower, any constituent partner or member of Borrower, any guarantor and any non-borrower trustor. Borrower shall (at Lender’s sole cost and expense), within fifteen (15) days after request by Lender; (a) deliver to Lender such information and documents relating to Borrower, the Property and its operation and any party connected with the Loan as Lender or any Rating Agency may reasonably request; (b) deliver to Lender an estoppel certificate for the benefit of Lender and any other party designated by Lender verifying the status and terms of the Loan, in form and content reasonably satisfactory to Lender; (c) enter into such amendments to the Loan Documents as may be requested in order to facilitate any such sale, assignment, participation, securitization, or other secondary market transaction, provided that no such amendments or documents shall (1) increase any of the obligations, or reduce any of the rights, of Borrower or Guarantor under the Loan Documents, (2) increase any costs or expenses payable by Borrower or Guarantor under the Loan Documents or (3) reduce any of the obligations, or increase any of the rights, of Lender under the Loan Documents; (d) enter into such amendments to the organizational documents of Borrower as Lender or any Rating Agency may reasonably request to preserve or enhance Borrower’s special-purpose bankruptcy-remote status; and (e) provide opinions of counsel, which may be relied on by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware and federal bankruptcy law relating to Delaware limited liability companies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies, including a 10b-5 opinion, with respect to the Loan, the Property, the Borrower and Guarantor, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies. All of the foregoing shall be at no cost to Borrower provided no Default is continuing. Lender hereby agrees that any sale or participation (other than a Securitization) of all or any part of the Loan shall be made only to a Qualified Transferee.

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Lender may designate an agent or independent contractor to exercise any of Lender’s rights under this Agreement and any of the other Loan Documents. Any reference to Lender in any of the Loan Documents shall include Lender’s agents, employees or independent contractors. Borrower shall pay the actual, reasonable costs of such agent or independent contractor either directly to such Person or to Lender in reimbursement of such costs, as applicable.

Borrower hereby authorizes Lender to file at any time on or after the date hereof, appropriate uniform commercial code financing statements in such jurisdictions and offices as Lender deems necessary or appropriate in connection with the anticipated perfection of a security interest in any and all personal property part of the Collateral as same relate to the Property. If for any reason the Loan is not consummated or upon Borrower’s payment in full of the Loan, Lender will cause the termination of such financing statements upon Lender’s receipt of written request from Borrower.

Lender is authorized to secure a tax service contract with a third party vendor which shall provide tax information on the Property satisfactory to Lender. Borrower shall pay any reasonable fees associated with procuring such tax service contract in connection with the closing of the Loan, but not in connection with any subsequent tax service contracts obtained by Lender.

In connection with the Loan, Borrower hereby agrees that Lender and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details may include the name of the Property, address of the Property, the Loan amount, the date of the closing and a description of the size/location of the Property. Subject to the prior approval of Lender (except in the case of disclosures required under applicable laws or regulations), Lender hereby agrees that Borrower and its affiliated entities may publicly identify details of the Loan in their respective advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e-mail or Internet advertising or communications. Such details disclosed by Borrower may include only the name of the Property, address of the Property, the Loan amount (but not the Note Rate), the date of the closing and a description of the size/location of the Property.

Borrower warrants that the Loan evidenced by this Agreement, the Note and the other Loan Documents is being made solely to acquire or carry on a business or commercial enterprise, and/or Borrower is a business or commercial organization. Borrower further warrants that all of the proceeds of this Agreement, the Note and the other Loan Documents shall be used for commercial purposes and stipulates that the Loan evidenced by this Agreement, the Note and the other Loan Documents shall be construed for all purposes as a commercial loan, and is made for other than personal, family or household purposes.

Borrower authorizes Lender to disburse the proceeds of the Loan, after deducting any and all fees owed by Borrower to Lender in connection with the Loan, to the Title Company. With respect to such disbursement, Borrower understands and agrees that Lender does not accept responsibility for errors, acts

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or omissions of others, including, without limitation, the escrow company, other banks, communications carriers or clearinghouses through which the transfer of Loan proceeds may be made or through which Lender receives or transmits information, and no such entity shall be deemed Lender’s agent. As a consequence, Lender shall not be liable to Borrower for any actual (whether direct or indirect), consequential or punitive damages which may arise with respect to the disbursement of Loan proceeds (other than as a result of the gross negligence or willful misconduct of Lender), whether or not (a) any claim for such damages is based on tort or contract, or (b) either Lender or Borrower knew or should have known of the likelihood of such damages in any situation.

If any provision or obligation under this Agreement and the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of the Loan Documents, provided, however, that if the rate of interest or any other amount payable under the Note or this Agreement or any other Loan Document, or the right of collectability therefor, are declared to be or become invalid, illegal or unenforceable, Lender’s obligations to make advances under the Loan Documents shall not be enforceable by Borrower.

All article, section or other headings appearing in this Agreement and any of the other Loan Documents are for convenience of reference only and shall be disregarded in construing this Agreement and any of the other Loan Documents.

If Borrower consists of more than one Person, the obligations and liabilities of each such Person hereunder shall be joint and several. Except as otherwise expressly provided under the terms and conditions of this Agreement, the terms, covenants, and conditions contained herein and in the other Loan Documents shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto and thereto.

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AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN

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CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.

The Loan Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein and supersede all prior negotiations or agreements, written or oral. The Loan Documents shall not be modified, except by written instrument executed by all parties. Any reference to the Loan Documents includes any amendments, renewals or extensions now or hereafter approved by the parties hereto in writing.

To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document.

Notwithstanding any provision of any other Loan Document (including without limitation the Note), in no event can any Loan Document be amended, extended, supplemented or otherwise modified, in whole or in part, except pursuant to a written agreement executed by Lender and any other party who has executed such Loan Document.

Wherever Lender’s consent, approval, acceptance or satisfaction is required under any provision of this Agreement or any of the other Loan Documents, such consent, approval, acceptance or satisfaction shall be in Lender’s sole discretion except as may be otherwise expressly and specifically provided herein.

Borrower hereby covenants and agrees to execute and deliver, at such time and from time to time, as required by Lender, such agreements, documents, instruments, estoppels, consents or certificates as Lender may, from time to time, reasonably request, including certificates reaffirming the representations and covenants of Borrower hereunder as if made on the date of any such reaffirmation. All representations and warranties contained in this Agreement and in any of the other Loan Documents shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of such compliance certificate (subject to the terms of Section 5.1(w) hereof), and each additional borrowing or other credit accommodation hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender.

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All exhibits and schedules attached hereto and listed in the Table of Contents are fully incorporated herein by reference for all purposes.

In the event of any conflict between this Agreement and any of the other Loan Documents, the terms of this Agreement shall govern.

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With respect to any waivers given by Borrower under this Agreement and other Loan Documents, Borrower acknowledges that: (a) the obligations undertaken by Borrower under and pursuant to this Agreement and the Loan Documents are complex in nature, (b) Borrower’s waivers variously involve rights that may otherwise be available to Borrower or for its benefit, (c) as part of Lender’s consideration for entering into this transaction, Lender has specifically bargained for Borrower’s waivers and the relinquishment by Borrower of those rights so waived, and (d) Borrower has had the opportunity to seek and receive legal advice from skilled legal counsel in the area of financial transactions of the type reflected in this Agreement and the Loan Documents. Based on the foregoing facts, Borrower represents and confirms to Lender that Borrower is fully informed regarding, and that Borrower does thoroughly understand the following: (i) the nature of its waivers and rights it has waived, (ii) the circumstances under which those rights may arise, (iii) the benefits which those rights might otherwise confer upon Borrower, and (iv) the legal consequences to Borrower of waiving those rights. Borrower acknowledges that Borrower has entered into this Agreement and the other Loan Documents and both undertaken Borrower’s obligations hereunder and thereunder and given its waivers with the intent that all such waivers shall be fully enforceable by Lender, and that Lender has been induced to enter into this transaction in material reliance upon the presumed full enforceability thereof.

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where, by applicable law or under this Agreement, the Mortgage, the Note and the other Loan Documents, Lender or such agent, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

The parties hereto acknowledge that the defined term “Borrower” (as well as the defined term defining each other Collective Group) has been defined to collectively include each individual Borrower (and in the case of each Collective Group, defined to collectively include each member of the same). It is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred, (b)

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there has occurred a Default, or (c) an event has occurred which would create recourse obligations under this Agreement, that any such breach, occurrence or event with respect to any Borrower (or with respect to any single member of a Collective Group) shall be deemed to be such a breach, occurrence or event with respect to all Borrowers (and in the case of each Collective Group, each member of the same) and that all Borrowers need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Borrower (and likewise that each member of a Collective Group need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to such Collective Group). The term “Collective Group” as used in this Agreement shall refer to each of the groups of entities represented in this Agreement by the following defined terms: Borrower and Guarantor. The obligations and liabilities of each Borrower shall be joint and several as more further set forth in a contribution agreement entered into in connection with the Loan.

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THIS AGREEMENT IS EXECUTED by Lender and Borrower as of the date appearing on the first page hereof.