Common use of Existing Loan Clause in Contracts

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept the conveyance of the Property subject to the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing).

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respectscomplete. To Seller’s Knowledge, neither Neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, and no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept assume the conveyance Existing Loan and shall pay all administrative fees, assumption fees and underwriting costs, if any, charged by the Existing Lender in connection with said assumption . Buyer acknowledges and understands that the Existing Loan includes a “lockout period” and may not be prepaid prior to September, 2009. Seller shall cooperate with Buyer in Buyer’s efforts related to the assumption of the Property subject to Existing Loan including executing such applications, certificates and other documents required by the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, Lender and providing any information required by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during in connection with the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan. Seller shall be responsible for the costs of its attorneys, includingand Buyer shall be responsible for the costs of its attorneys. In addition, without limitationBuyer shall be responsible for the cost, promptly furnishing and/or paying for all items required by if any, of Existing Lender’s attorneys, related to the holder assumption of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder any negotiation of the Existing Loan assumption documents or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer structure related to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)sale; provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees costs of Existing Lender’s counsel necessitated by Lender or Existing Lender attorneys directly related to Seller’s negotiation of the Assumption Documents assumption documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any the structure related to the assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be paid by the Assumption Document to be executed at Closing)Seller.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At ClosingSeller and Buyer acknowledge that prior to the recordation of the Deed, Buyer shall accept the conveyance Property must be defeased pursuant to the requirements set forth in the Existing Loan documents (the “Defeasance Requirements”). The Defeasance Requirements provide for the substitution of the Property subject to (and the release of the lien securing the Existing LoanLoan on the Property) with U.S. government obligations purchased by or for Seller. Because of the Defeasance Requirements, includingBuyer’s cooperation will be necessary, without limitationand Buyer hereby agrees to (i) deposit all documents required by Buyer hereunder to be delivered at Closing, all liens securing its payment. If this Contract is still pendingwhich documents shall be fully executed, by and where required acknowledged, with Title Company no later than fifteen the Documents Delivery Date, at which time all conditions to Buyer’s obligation to close hereunder other than those set forth in Section 9.1(a), (15b), (c), (e), and (f) days after and in Section 13.1 shall be deemed satisfied, (ii) deposit the Effective Purchase Price, together with any additional sums due by Buyer hereunder, with the Title Company no later than 10:30 a.m. of that date which is one (1) Business Day prior to the Closing Date. Unless Seller and Buyer agree to an earlier time, upon expiration of the Review Period, and provided Buyer has not terminated this Contract, Seller shall use good faith, diligent efforts to cause Existing Lender on or prior to deliver to Buyer Closing (or for Seller to deliver to Buyeri) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan to release or irrevocably commit to releasing its servicer to process Buyer’s application liens encumbering the Property and pay all costs required by the holder of accept as collateral for the Existing Loan other replacement collateral in accordance with the Defeasance Requirements, and (ii) the Existing Loan documents and the lien of the mortgage or its servicer deed of trust encumbering the Property, and any other encumbrances related to the Existing Loan affecting the Property, be removed as exceptions to Buyer’s Title Policy (such costs collectively, the “Defeasance”). Buyer shall pay at Closing (i) the entire cost of all U.S. governmental obligations necessary to complete the Defeasance, less the then-accrued interest and outstanding principal balance owed on the Existing Loan, and (ii) all other costs and expenses of expenses, other than Seller’s own attorneys fees, payable by Seller in order to exercise and complete the holder of Defeasance, except for then-accrued interest and outstanding principal balance owed on the Existing Loan or its servicer to consider, investigate, process, approve (items in [i] and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, [ii] being sometimes collectively referred to as the “Assumption Defeasance Costs”); provided. The Defeasance Costs including, howeverwithout limitation, in no event shall the Assumption Costs include any servicing and processing fees, custodian fees, legal fees of the Existing Lender and its servicers and subservicers, accountants’ fees, brokers’ fees, successor borrower costs and fees to a third party advising or assisting Seller in the process of obtaining the Defeasance. Buyer shall engage a defeasance consultant reasonably acceptable to Seller (Wachovia being hereby approved) to coordinate the Defeasance and will cooperate with Seller’s performing of the Defeasance at no cost or expense to Seller, except for Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated attorneys fees. To the extent necessary to apply for and consummate the Defeasance, Buyer shall promptly advance upon request by Seller’s negotiation Seller all of the Assumption Documents or necessitated Defeasance Costs, other than those costs that are due upon completion of the Defeasance (which other costs shall be payable one [1] Business Day prior to Closing). It is acknowledged by Seller’s pursuit Seller and Buyer that the precise cost of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely the Defeasance may not be known on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract date that is one (i) Business Day prior to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If , and, therefore, Buyer agrees to deposit with the Assumption Documents require that Escrow Agent on such day the Defeasance Costs estimated at the time by the independent consultant engaged by Buyer or New Guarantor give representations or warranties to Existing Lender complete the Defeasance (with respect Buyer obligated to matters affecting pay any deficiency on the Property prior Closing Date and entitled to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible any surplus for all costs, fees and expenses incurred or payable as a result an overpayment of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expensesestimated Defeasance Costs). Buyer’s foregoing indemnity regarding agreement to pay all of the Assumption Defeasance Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests Contract occurring after the expiration of the Existing Loan shall each be Permitted Exceptions (as Review Period. Notwithstanding anything contained herein to the contrary, if Closing does not occur and this Contract is terminated due to a default by Seller, the Defeasance process shall be terminated and Seller shall reimburse Buyer for all Defeasance Costs incurred or accrued up to the Assumption Document date of termination. Furthermore, if Closing does not occur and this Contract is terminated for any other reason, the Defeasance process shall be terminated and Buyer shall be responsible only for those Defeasance Costs incurred or accrued up to be executed at Closing)the date of termination.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. (i) At Closing, Buyer shall accept Purchaser agrees to acquire the conveyance of the Property Subject Interests subject to the Loan and the Loan Documents. In this regard, the purchase and sale contemplated hereunder requires the approval of Lender. In connection with such approval, Purchaser agrees to (a) notify Seller in writing within five (5) business days after the Effective Date of the name of the entities or persons to assume the obligations of Gazit Senior Care, Inc., a Florida corporation and ROICO Holdings, L.P., a Delaware limited partnership (collectively, the “Existing LoanPrincipals”) arising from and after Closing under that certain Agreement of Principals dated January 10, 2006 to and in favor of Lender (the “Agreement of Principals”), with such assumption as between Seller and Purchaser (and expressly not Lender) to be subject to a Recourse Contribution Agreement (as defined herein) between Seller and Purchaser, (b) submit a transfer/assumption application (the “Application”) which appears complete on its face to Lender or its servicer, together with all applicable application fees (provided however, if that the transaction contemplated by this Agreement closes, all such fees and costs shall be paid eighty percent (80%) by Purchaser and twenty percent (20%) by Seller), within two (2) business days after the Effective Date, and provide Seller with written notice of submission of such Application and evidence of submission of the Application and application fees simultaneously with delivery of the same to Lender or its servicer, (c) promptly furnish to Lender or its servicing agent and Seller such other information, financial or otherwise, as may be reasonably requested by Lender or its servicing agent or counsel following Purchaser’s initial submission of the Application, (d) proceed with diligence and use commercially reasonable efforts to obtain Lender’s approval of Purchaser’s acquisition of the Subject Interests at the earliest possible date, (e) keep Seller timely apprised of the status thereof, and (f) provide Seller with copies of all correspondence between Lender and Purchaser relating to the Application, provided, however, that Purchaser may redact any financial or proprietary information contained therein. (ii) Purchaser shall timely pay any and all fees and costs required by Lender in connection with the Application and purchase of the Subject Interests, including, without limitation, any application fees, any assumption fees, attorneys’ fees and costs of Lender’s counsel, and any fees or costs associated with Lender’s counsel, and any fees and costs associated with Lender’s title insurance coverage, if any; provided however, that if the transaction contemplated by this Agreement closes, all liens securing its paymentsuch fees and cost shall be paid eighty percent (80%) by Purchaser and twenty percent (20%) by Seller. If this Contract is still pendingThe Purchaser shall have the right, by no later than fifteen (15) days after but not the Effective Dateobligation, Seller shall cause Existing to include, with the Application or as a part thereof, an additional application, request or such other documentation as Lender may require, for a commitment or proposal from Lender to deliver advance at Closing, under terms and conditions that are acceptable to Buyer (or for Seller to deliver to Buyer) a complete assumption Purchaser and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption funds in excess of the Existing Loanoutstanding amount under the Loan (the “Additional Loan Advance”), such Additional Loan Advance to be secured as a future advance under the Greenville Mortgage and Lexington Mortgage, or by second priority mortgages and security agreements upon the Greenville Facility and Lexington Facility. The Purchaser shall timely pay any and all fees and costs required by Lender in connection with the application or request for the Additional Loan Advance, including, without limitation, promptly furnishing and/or paying for all items required by the holder any application fees, and origination fees, break-up fees, attorneys’ fees and costs of the Existing Loan Lender’s counsel, and any fees or its servicer to process Buyercosts associated with Lender’s application counsel, and pay all any fees and costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to considerassociated with Lender’s title insurance coverage, investigateif any; provided however, process, approve and document that if the transaction contemplated by this ContractAgreement closes, all such fees and cost shall be paid eighty percent (80%) by Purchaser and twenty percent (20%) by Seller. (iii) If (a) Lender does not approve of Purchaser’s purchase of the Subject Interests on or before thirty (30) days after the Effective Date (the “Lender Approval Period”), as the same may be extended, (b) the terms and conditions under which Lender will approve Purchaser’s acquisition are materially and adversely different from a term sheet that is anticipated to be provided by Lender, negotiated with Lender and as between Purchaser and Seller, acceptable to Purchaser and Seller (such acceptance to be evidenced in writing, including all applicationvia email) during the Study Period (as such Term Sheet may be thereafter amended with the written consent (including consent via email) of Purchaser and Seller, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption CostsTerm Sheet”) and Purchaser is unwilling to accept such different terms, or (c) Lender does not approve the party proposed by Purchaser with respect to the Agreement of Principals under Section 3 (d)(i); provided, howeversuch matter(s) shall be deemed a failure of condition under Section 9(d)(i) and Section 9(d) (ii). Notwithstanding anything to the contrary contained herein, in no event if Lender does not approve of Purchaser’s purchase of the Subject Interests as set forth herein on or before the scheduled expiration of the Lender Approval Period, either Purchaser or Seller may extend the Lender Approval Period by up to an additional thirty (30) days. Purchaser acknowledges and agrees that (w) if Purchaser requests an additional advance from Lender and Lender grants such request, it is probable that the per annum interest rate or so-called “spread” determining same under the provisions of the Loan shall increase, (x) the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation agreement that neither Gazit nor any other Affiliates of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not Seller shall be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract obligated to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by “Principals” under the holder Agreement of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender Principals with respect to matters affecting arising from and after Closing is acceptable to Purchaser and is not a material and adverse modification of the Property prior to Closing, Seller and such principals provisions of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, BuyerTerm Sheet, and not Seller(z) notwithstanding anything to the contrary, shall be responsible for all costs, fees and expenses incurred or payable the Lender agreeing to advance funds in addition to the outstanding amount due under the Note as a result of the Assumption Costs and complying with date hereof is not a condition to the requirements obligation of the Existing Loan for an assumption, and Buyer hereby agrees Purchaser to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of close this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)transaction.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge's knowledge, neither there is no existing default on the part of Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. As used in this Agreement, or in any other agreement, document, certificate or instrument delivered by Seller to Buyer, the phrase "to Seller's knowledge", "to Seller's actual knowledge", "to the best of Seller's knowledge" or any similar phrase shall mean the actual, not constructive or imputed, knowledge of David C. Quade, Executive Vice President and Chief Financial Xxxxxxx xx Xxe Berkshire Group and Rick Ragsdale, Regional Operations Vice President, but withoxx xxx xxxxxxtion on their part to make any independent investigation of the matters being represented and warranted, or to make any inquiry of any other persons, or to search or examine any files, records, books, correspondence and the like. At Closing, Seller shall represent and warrant to Buyer shall accept by delivering to Buyer a certificate (the conveyance "Seller's Representation Certificate") certifying that all representations and warranties of Seller in this Agreement remain true and correct in all material respects as of the Property subject to the Existing Loan, including, without limitation, Closing Date and all liens securing its payment. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required representations and warranties contained herein shall be deemed remade by the holder Seller effective as of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)Closing Date; provided, however, that to the extent that Seller becomes aware of any facts or circumstances which would make a representation or warranty untrue in any material respect, Seller shall promptly deliver written notice to Buyer of such facts or circumstances after becoming aware of same (but in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If ) and, the Assumption Documents require that Buyer Seller's Representation Certificate may be revised at Closing to make exception or New Guarantor give representations or warranties to Existing Lender qualification with respect to such matters affecting as may be necessary for such representations to remain true, but Buyer's agreement to allow such amendment of Seller's Representation Certificate shall not affect or indicate any waiver of any condition to Closing set forth in this Agreement, and Buyer may terminate this Agreement and receive the Property Deposit, if Seller fails, for any reason, to deliver Seller's Representation Certificate at Closing without any material change, except as to changes which are permitted or contemplated pursuant to Section 8 hereof. Buyer agrees to inform Seller promptly in writing if it discovers that any representation or warranty of Seller is inaccurate in any material respect, or if it believes that Seller has failed to deliver to Buyer any document or material which it is obligated to deliver hereunder. If Buyer notifies Seller prior to Closing that any representation or warranty made in Section 5 is not true and correct in any material respect and Seller fails to cure or remedy the same prior to Closing, Buyer may either (a) except as otherwise set forth in this paragraph, terminate this Agreement and the Deposit shall be returned to Buyer, and neither party shall have further rights or obligations pursuant to this Agreement, except for Buyer's obligation to repair any damage to the Property and to indemnify Seller as set forth in Section 6.01; or (b) waive any such representation or warranty and such principals of Seller currently liable therefor close the transaction without any reduction in the Purchase Price. Notwithstanding the foregoing, Buyer shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed not have the right to Existing Lender as a result terminate this Agreement on account of a breach thereofof a Seller representation or warranty to the extent that, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result the end of the Assumption Costs and complying with the requirements Inspection Period, Buyer discovers or learns of the Existing Loan for an assumptioninformation (from whatever source, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing).including,

Existing Loan. (a) The obligations of Seller represents under this Agreement are contingent and warrants conditioned upon the following: i. Lenders approval of the assignment to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan; and ii. At Closing, Buyer shall accept Receipt by Seller from Lender at Closing of a release of all of its obligations as borrower under the conveyance of the Property subject to the Existing LoanLoan Documents, including, without limitation, all liens securing a release by Lender of Seller from its payment. If obligations under the Certificate and Indemnity Agreement listed on EXHIBIT E; provided however, that, at its option, Seller may waive the condition set forth in this Contract is still pending, by no later than fifteen Section 6.4(a)(ii). (15b) Within three (3) days after of the Effective Datedate hereof, Seller shall cause provide Buyer with a true, correct and complete copy of all Loan Documents executed in connection with the Existing Lender to deliver to Buyer Loan, which documents are listed on EXHIBIT E attached hereto. (or for Seller to deliver to Buyerc) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during simultaneously with the pendency execution of this Contract use diligentAgreement, commercially reasonable efforts, deliver to Seller a check payable to Seller in cooperation with Seller, the amount of $5,000.00 (the Application Fee) to facilitate Buyer’s reimburse Seller for the fee charged to Seller by Lender for applying for its consent to the assignment and assumption of the Existing Loan. In the event Purchaser does not deliver the Application Fee to Seller as provided in the immediately preceding sentence, includingSeller may offset the Application Fee against the Xxxxxxx Money without further action or consent by Buyer. Buyer and Seller agree to diligently pursue such application until Lender grants its approval of the assignment and assumption of the Existing Loan to Buyer. In the event that Lender has not granted its approval of the assignment and assumption of the Existing Loan to Buyer within thirty (30) days from the expiration of the Diligence Date, then either Buyer or Seller may elect to terminate this Agreement by written notice to the other party, and the Escrowed Amount shall be returned to Buyer and this Agreement shall thereupon terminate and be of no further force and effect. In connection with such application, Buyer agrees to simultaneously provide Seller with copies of all materials submitted to Lender and Buyer agrees that it shall not withdraw or amend its application without Sellers prior written consent. (d) Buyer agrees to submit all materials requested by Lender and/or those documents required to be submitted to Lender pursuant to the applicable provisions of the Loan Documents on or before expiration of the Diligence Date. Buyer acknowledges that such application documents include, without limitation, promptly furnishing and/or paying for the following: (i) information regarding Buyers finances and credit; (ii) information regarding Buyers management experience and general reputation in the community; and (iii) information regarding the ownership structure of Buyer, including a list of all items required persons having or proposing to have more than a ten percent (10%) ownership interest in Buyer. (e) Buyer shall pay all fees and costs, if any, charged by the holder Lender relating to the assignment and assumption of the Existing Loan Loan. (f) Buyer and Seller agree to cooperate with Buyers efforts to obtain Lenders consent. Subject to the other provisions of this Agreement, Buyer and Seller each agree to execute and deliver any and all documents or its servicer instruments or take such other action as may be necessary or proper to process Buyer’s application effectuate, confirm, perform or carry out the assignment and pay all costs required by the holder assumption of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)Loan.

Existing Loan. (a) The obligations of Seller represents under this Agreement are contingent and warrants conditioned upon the following: (i) Lender's approval of the assignment to Buyer that of the Existing Loan; (ii) Receipt by Seller from Lender at Closing of a release of (A) all obligations of Seller and any guarantor or indemnitor under any and all environmental or hazardous substance remediation or indemnification agreements for events occurring or arising from and after the Closing Date and (B) all other obligations of Seller and any guarantor or indemnitor under the Existing Loan is Documents. (b) Within three (3) days of the only indebtedness secured by the Property and that the information contained on Exhibit H is date hereof, Seller shall provide Buyer with a true, correct and complete copy of all Existing Loan Documents executed in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing connection with the Existing Loan andin its possession or control, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept the conveyance of the Property subject to the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, by no later than fifteen documents are listed on EXHIBIT I attached hereto. (15c) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during simultaneously with the pendency execution of this Contract use diligentAgreement, commercially reasonable efforts, deliver to Seller a check payable to Seller in cooperation with Seller, the amount of $1,500.00 or such other amount as may be required to facilitate Buyer’s reimburse Seller for the fee(s) charged to Seller by Lender for applying for its consent to the assignment and assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by . Buyer and Seller agree to diligently pursue such application until Lender grants its approval of the holder assignment and assumption of the Existing Loan to Buyer or its servicer responds that it will not grant such approval or conditions such approval on requirements unacceptable to process Buyer’s application and pay Buyer or Seller (in each of such party's commercially reasonable discretion), including, but not limited to, timely submission of all costs materials reasonably requested by Lender and/or those documents required by to be submitted to Lender pursuant to the holder applicable provisions of the Existing Loan or its servicer (such costs and all Documents. Each party shall advise the other costs and expenses party as to the status of the holder application process from time to time promptly following the request of the other party. (d) Buyer shall pay all fees and costs, if any, charged by the Lender relating to the assignment and assumption of the Existing Loan Loan. (e) Buyer and Seller agree to cooperate with Buyer's efforts to obtain Lender's consent. Subject to the other provisions of this Agreement, Buyer and Seller each agree to execute and deliver any and all documents or its servicer instruments or take such other action as may be necessary or proper to considereffectuate, investigateconfirm, process, approve and document perform or carry out the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency assignment and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)Loan.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respectscomplete. To Seller’s Knowledge, neither Neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, and no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept assume the conveyance Existing Loan and shall pay all administrative fees, assumption fees and underwriting costs, if any, charged by the Existing Lender in connection with said assumption . Buyer acknowledges and understands that the Existing Loan includes a “lockout period” and may not be prepaid prior to May, 2009. Seller shall cooperate with Buyer in Buyer’s efforts related to the assumption of the Property subject to Existing Loan including executing such applications, certificates and other documents required by the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, Lender and providing any information required by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during in connection with the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan. Seller shall be responsible for the costs of its attorneys, includingand Buyer shall be responsible for the costs of its attorneys. In addition, without limitationBuyer shall be responsible for the cost, promptly furnishing and/or paying for all items required by if any, of Existing Lender’s attorneys, related to the holder assumption of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder any negotiation of the Existing Loan assumption documents or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer structure related to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)sale; provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees costs of Existing Lender’s counsel necessitated by Lender or Existing Lender attorneys directly related to Seller’s negotiation of the Assumption Documents assumption documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any the structure related to the assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be paid by the Assumption Document to be executed at Closing)Seller.

Existing Loan. Subject to the provisions of this Section 5.7(a), Seller represents shall diligently and warrants in good faith seek, and Purchaser shall diligently and in good faith cooperate with Seller and Existing Lender to Buyer assist Seller to obtain, the consent (“Lender Consent”) required under the Loan Documents to the transactions contemplated by this Agreement (the “Contemplated Transactions”). Purchaser and Seller agree to cooperate in good faith to obtain the Lender Consent and Purchaser agrees that Seller shall control the process but shall, in so doing, keep Purchaser and its counsel regularly informed and (where practicable) regularly involved in the process, including copying Purchaser and its counsel on all written notices delivered to Existing Loan is Lender and its counsel, and inviting and affording Purchaser and its counsel the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete opportunity to participate in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions meetings and conference calls. (i) Purchaser has received and reviewed the Loan Documents and has made its own independent decision with regard to the nature of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be Required Consents required thereby as a default under the Existing Loan. At Closing, Buyer shall accept the conveyance result of the Property subject Contemplated Transactions and understands and agrees that Existing Lender has discretion to approve, and could disapprove, the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, by no later than fifteen Contemplated Transactions. (15ii) days On or before the fifth Business Day after the Effective Date, Seller shall cause notify Existing Lender to deliver to Buyer of the Contemplated Transactions and request that Existing Lender provide a list of Existing Lender’s requirements (or the “Lender Requirements”) for Seller to deliver to Buyer) a complete the consummation of the loan assumption and applicationLender Consent. Seller’s notification to Existing Lender shall include a copy of this Agreement and a financial statement for the Substitute Guarantor proposed by Purchaser and a structure chart for Purchaser, Substitute Guarantor and their respective direct and indirect owners. Following such request, Seller and Purchaser, as applicable, shall promptly provide all information required to be delivered to Existing Lender in connection with obtaining Lender Consent under the Loan Documents (including the proposed organizational documents for Purchaser and its constituent members or partners) and all other information reasonably requested by Existing Lender. Each of Purchaser and Seller shall use diligent efforts, and thereafter Buyer shallshall cooperate with each other and any other Persons (e.g., at its sole cost the Existing Lender, the Ground Lessor and expensethe rating agencies), during in order to obtain Lender Consent as soon as is reasonably possible. Each party shall from time to time upon the pendency other’s reasonable request, provide status updates on the efforts to obtain Lender Consent and each party shall copy the other on all submissions and material correspondence to and from Existing Lender, including Seller’s submission request letter to Existing Lender. (iii) In furtherance of the provisions of this Contract use diligentSection 5.7(a): (1) Purchaser shall execute and deliver or cause to be delivered to Existing Lender such assumption agreements, commercially reaffirmation agreements, loan modifications, legal opinions, resolutions, certificates, title insurance endorsements and other instruments and documents as Existing Lender or the rating agencies may require pursuant to the applicable provisions of the Loan Documents or may otherwise reasonably require in connection with the Lender Consent (collectively, the “Loan Assumption Documents”). In this regard, Purchaser acknowledges that the Existing Loan has been securitized and that Purchaser shall be obligated to comply with, and it shall be deemed reasonable effortsfor Existing Lender or the rating agencies to request that Purchaser comply with, in cooperation with Seller, the S&P U.S. CMBS Requirements applicable to facilitate Buyer’s the assumption of the Existing LoanLoan by Purchaser, the structuring of Purchaser and the other requirements applicable to loan assumptions, together with any other customary requirements of lenders, servicers or rating agencies for the assumption of securitized loans, including, without limitation, promptly furnishing and/or paying for all items required by the holder requirement that Purchaser and any direct member of Purchaser be newly-formed SPEs and that, from the Effective Date until the Closing Date, Purchaser (or its assignee) be a wholly-owned direct or indirect subsidiary of Boston Properties Limited Partnership. Notwithstanding the foregoing, the Loan Assumption Documents shall not impose any obligations on Purchaser’s principals or, subject to any additional burdens or obligations imposed on Purchaser or any of its affiliates under any express provision of this Section 5.7(a), impose any additional burdens on Purchaser, or any affiliates, not contained in the Loan Documents, nor amend any provision of the Loan Documents in any materially adverse manner or otherwise materially adversely change the existing terms of the Existing Loan or its servicer except as may be requested by Purchaser. In connection with the Lender Consent submission, Purchaser shall have the right to process Buyer’s application and pay all costs required by the holder of request reasonable modifications to the Existing Loan or its servicer (such costs Documents in order to reflect the change in the identity and all other costs and expenses ownership structure of the holder of new borrower and the Existing Loan or its servicer new guarantor, including without limitation, changes to considerthe permitted transfer provisions, investigatethe insurance provisions, processthe notice provisions, approve any modifications to the property management agreement, and document the right to structure the transaction contemplated by in accordance with Section 10.22 of this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)Agreement; provided, however, that (I) the failure to obtain any such reasonable modifications shall not be deemed a failure of the condition to obtain Lender Consent and if Lender Consent shall be forthcoming without such modifications, then Purchaser shall be required to accept Lender Consent without such modifications and (II) any obligations imposed on Purchaser or its affiliates in connection with any such modifications agreed to between Purchaser and Existing Lender shall not be considered additional burdens on Purchaser or its affiliates under this Section 5.7(a). Purchaser agrees to reasonably negotiate provisions drafted to incorporate any requested reasonable modifications. In no event shall Purchaser obtain the Assumption Costs Approved Mezzanine Loan (as defined in the Loan Documents) prior to Closing or, prior to Closing, include or have the right to obtain any legal fees third party equity, preferred equity investor or pari passu or subordinated lender providing preferred equity, mezzanine debt or other indebtedness that is not expressly permitted by the Loan Documents in existence as of Seller’s own counsel or legal fees the Effective Date. (2) Seller shall execute and deliver such release of Existing Lender’s counsel necessitated Lender and other documents as may be reasonably requested by Seller’s negotiation Existing Lender to obtain Lender Consent. (3) Purchaser shall cause a Substitute Guarantor affiliated with Purchaser to execute and deliver to Existing Lender (I) a guaranty of recourse obligations and an environmental indemnity agreement, (II) an assumption of the Assumption Documents or necessitated by Sellertenant’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on interest in the amount 58th Floor Master Lease and (III) a guaranty of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder obligations of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees affiliate of the Normandy Fund under that certain ROFO side letter with Existing Loan in place and stead Lender for any liability of the principals of Seller landlord thereunder from and after the Closing Date(collectively, the “Existing Guarantees”) in form and substance substantially similar to the ones that currently are part of the Loan Documents (the “Substitute Guarantees”) and Seller shall seek to obtain from Existing Lender a release of all liability under the Existing Guarantees from and after (but not before) the assumption of the Existing Loan by Purchaser on the Closing Date (the “Prospective Release”). If Seller is unable to obtain the Prospective Release from Existing Lender (and, in the case of the 58th Floor Master Lease, Existing Lender’s consent to the assignment to Purchaser of Seller’s interest as landlord under the 58th Floor Master Lease, the assumption by Substitute Guarantor of the tenant’s interest in the 58th Floor Master Lease and the other obligations to assignment and assumption thereof described above (collectively, the “58th Floor Lease Assumption Documents”)), Substitute Guarantor shall execute and deliver to Seller at Closing an agreement indemnifying the Seller Parties from all claims, liabilities, losses, damages, judgments, costs and expenses, including, but not limited to, reasonable attorneys’ fees and disbursements, arising under the Existing Guarantees that are attributable to actions occurring on or after the Closing Date (the “Guaranty Indemnification Agreement”). (4) If Existing Lender shall fail or refuse to grant Lender Consent on or before the Outside Consent Date for a reason other than the default by Seller or Purchaser in its obligations under this Agreement and Purchaser has not made the Defeasance Election, this Agreement shall automatically (and without the necessity of notice) terminate, in which case Escrow Agent shall return the Deposit to Purchaser and neither Seller nor Purchaser shall have any further liability hereunder or by reason hereof except for the Effective Date Surviving Obligations. If the failure to obtain Lender Consent is due to the default by Seller or Purchaser in its obligations under this Agreement, then the provisions of Article 9 shall apply. (5) Seller and Purchaser agree that the Lender Consent shall be deemed given (so that the parties may proceed to scheduling a Closing) if the Contemplated Transactions are permitted, even if such consent is conditioned upon or subject to the execution and delivery of the Substitute Guarantees, Loan Assumption Documents require that Buyer or New Guarantor give representations or warranties and other documents and deliveries contemplated by this Section 5.7(a)(iii) on the Closing Date. (iv) Purchaser shall be obligated to pay to Existing Lender with respect to matters affecting Lender, or reimburse Seller at Closing for, all of the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damagesfees, costs and expenses owed required by the Loan Documents and/or Existing Lender (collectively, the “Loan Transfer Fees”) in connection with the Lender Consent, whether or not received, including, but not limited to, all processing fees, application fees, attorneys’ fees, recording fees, underwriting fees and rating agency fees. (v) At the Closing, Seller shall receive a credit (the “Loan Reserve Credit”) to the Purchase Price for (A) the then outstanding balance of all reserves, escrows, and/or deposits then being held as of the Closing Date by Existing Lender under the Loan Documents (collectively, the “Loan Reserves”) for real estate taxes, insurance, deferred maintenance, capital replacements, tenant improvements and leasing commissions, ground rent under the Ground Lease and other purposes (after taking into account any pending requisitions relating thereto so that (1) if the pending requisition is for a cost for which Seller is responsible under this Agreement, Seller would not receive a credit for such requisition and (2) if the pending requisition is for a cost for which Seller is not responsible under this Agreement, Seller would receive a credit for such requisition), and (B) any and all other funds derived from the Property held by Existing Lender in any lockbox, cash management or other account or subaccount as of the Closing Date, subject to adjustment in accordance with the proration provisions specified herein; provided, however, that (1) Seller shall not receive any Loan Reserve Credit for any amounts (i.e., Xxxx Lease Obligation Security) then being held by Existing Lender that constitute funds reserved for Seller Retained Obligations, and Seller shall continue to hold title to and have the right to use such amounts as provided in Article 8, and (3) the $7.5 Million LOC shall not constitute part of the Loan Reserve Credit. (vi) At the Closing, (A) interest under the Existing Loan shall be prorated between Seller and Purchaser as of the Closing Date with Seller receiving a credit for any prepaid interest and Purchaser receiving a credit for any accrued and unpaid interest as of the Closing Date and (B) Seller shall pay to Existing Lender all amounts due and owing by Seller to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)Date.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance (a) Borrower has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept the conveyance of purchased the Property subject to the Existing Loan, including, without limitation, all liens securing its paymentincluding the Existing Note and the Existing Deed of Trust. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender At Borrower’s request and in order to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole substantially reduce Borrower’s cost and expenseexpense of closing the Loan, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, Lender has agreed to facilitate Buyer’s assumption accept an assignment of the Existing Loan, the Existing Note and the Existing Deed of Trust, such that Lender is the sole owner of the Existing Loan; and Lender has further agreed to refinance the same with the new Loan to be evidenced and secured by the Note, the Deed of Trust and the other Loan Documents. Borrower and Lender acknowledge and agree that the Note, the Deed of Trust and the other Loan Documents evidence all terms and conditions of the Loan. (b) Borrower hereby acknowledges and agrees that it has no claims, counterclaims, offsets or defenses whatsoever, known or unknown, with respect to the Loan, the Note, the Deed of Trust or the other Loan Documents as a result of or in any way connected to or arising out of the Existing Loan, the Existing Note, the Existing Deed of Trust or any other document or matter related thereto. To the extent XxxX/Xxxxxxxxx Xxxx Loan Agreement #438690v6 Borrower now has or hereafter obtains any such claim, counterclaim, offset or defense, Borrower hereby waives and releases the same in its entirety. (c) Borrower hereby releases Lender and Lender’s officers, directors, employees, agents, successors and assigns (collectively, the “Lender Parties”) of and from all claims whatsoever, known or unknown, now or hereafter held by Borrower or its successors and assigns as a result of or in any way connected to or arising out of the Existing Loan, the Existing Note, the Existing Deed of Trust or any other document or matter related thereto. (d) Borrower covenants and agrees that it will not xxx any Lender Party or assert any claim, counterclaim or defense against any Lender Party as a result of or in any way connected to or arising out of the Existing Loan, the Existing Note, the Existing Deed of Trust or any other document or matter related thereto. (e) Borrower hereby agrees to indemnify each Lender Party from and against all loss, liability, cost and expense, including, without limitation, promptly furnishing and/or paying for all items required reasonable attorneys’ fees and expenses, incurred by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender Party as a result of a breach thereofor in any way connected to or arising out of the assignment to Lender or Lender’s ownership of the Existing Loan, provided the Existing Note, the Existing Deed of Trust or any other document or matter related thereto, including, without limitation, any of the same arising out of claims asserted against any Lender Party by any borrower, guarantor or other person now or previously liable under or with respect to the Existing Loan, the Existing Note, the Existing Deed of Trust or any other document or matter related thereto. (f) Borrower acknowledges and agrees that the representations and warranties so made provisions of this Section 1.4 are limited a material inducement to reasonable matters affecting Lender to structure the Property prior to Closing. Except Loan as expressly provided described in this Section 4.41.4. (g) Lender agrees that, Buyerconcurrently with making the new Loan, it will (i) xxxx the Existing Note paid, and not Seller, shall be responsible for all costs, fees (ii) execute and expenses incurred or payable as deliver a result of the Assumption Costs and complying with the requirements release of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all Deed of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)Trust.

Existing Loan. Seller represents and warrants to Buyer (i) The parties recognize that the Existing Property is subject to a Credit Line Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (“Mortgage”) securing a Promissory Note (“Note”, and together with the Mortgage and all other documents executed in connection with the Note, the "Loan is Documents") both of which are dated April 28, 2015, and executed by Target in favor of 4816-5177-4793.2 22484/0208 First-Citizens Bank & Trust (the only indebtedness secured by “Lender”) pursuant to a loan (“Loan”) in the Property and that original principal amount of $25,289,429. (ii) During the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach term of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closingthis Agreement, Buyer shall accept use commercially reasonable efforts to obtain the conveyance “Lender Consent”, which shall mean the written consent of Lender (i) approving a change in structure and ownership of the Property subject to Target such that the Existing LoanTarget is owned and controlled exclusively by Buyer; and (ii) a release of all guarantors and/or indemnitors of the Loan (excluding the Target) from all obligations and liabilities from and after the Closing Date. (iii) Buyer shall be responsible for any and all costs imposed by Lender in connection with the Lender Consent, including, without limitation, all liens securing its payment. If this Contract is still pendingthe Lender’s attorneys’ fees, by no later than fifteen (15) days after the Effective DateLender’s appraisal fee, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and applicationthe Lender’s title costs, application fees, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all any other costs and expenses of incurred or imposed by Lender. If the holder of parties proceed with the Existing Loan or its servicer to considerLender Consent, investigatethen at Closing, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely interest on the amount Note shall be prorated as of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date, and Seller shall receive a cash credit at Closing for all deposits, reserves and/or impounds held by Lender under or in connection with the Loan Documents. (iv) Notwithstanding anything to the contrary contained herein, Seller and Buyer’s obligation to complete the purchase of the Interest is not conditioned upon Buyer obtaining the Lender Consent. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting has not approved the Property Lender Consent, and issued execution copies of the Lender Consent Documents, at least three (3) business days prior to Closingthe Closing Date, Seller and such principals of Seller currently liable therefor then the parties shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing proceed to Closing without the Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, BuyerConsent, and not Seller, Seller shall be responsible for all costs, fees and expenses incurred or payable as a result of cause the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed satisfied in full at Closing).