Common use of Existing Loans Clause in Contracts

Existing Loans. At or prior to the applicable Closing, (i) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released (collectively, the “Existing Loan Indemnification Obligations”). In connection with obtaining any Required Third Party Consent from a lender under an Existing Loan, in no event will the Purchaser Parties, for themselves or any of their Affiliates, be required to repay any portion of the outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required pursuant to the terms of the Existing Loan Documents, (iii) provide any guaranty or indemnity with respect to an Existing Loan other than the replacement of the most recent existing guarantees and indemnities by the Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or after the applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loan.

Existing Loans. At or prior to the applicable Closing, (i) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “"Existing Loan Release”"), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released (collectively, the “"Existing Loan Indemnification Obligations”"). In connection with obtaining any Required Third Party Consent from a lender under an Existing Loan, in no event will the Purchaser Parties, for themselves or any of their Affiliates, be required to repay any portion of the outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required pursuant to the terms of the Existing Loan Documents, (iii) provide any guaranty or indemnity with respect to an Existing Loan other than the replacement of the most recent existing guarantees and indemnities by the Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or after the -- \\DC - 088650/000238 - 6521921 v16 applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loan.

Existing Loans. At or prior to the applicable Closing, (i) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts As part of the Property Information, Seller Parties agrees to cause each lender with respect provide to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each its counsel full and complete copies of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released all documents (collectively, the “Existing Loan Indemnification ObligationsDocuments”) evidencing or securing the Mortgage Liens and the loans secured thereby (individually, an “Existing Loan”, and collectively, the “Existing Loans”). In connection with obtaining any Required Third Party Consent from a Within 10 days following the execution and delivery of this Agreement, Purchaser shall contact each lender under an to investigate the feasibility of assuming each Existing Loan, and during the Feasibility Period, Purchaser must elect as to each Existing Loan by delivery of written notice to Seller: (i) that such loan be paid in no event will full at Closing (provided the Purchaser Parties, for themselves or any of their Affiliates, same is permitted to be required to repay any portion of the outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required pursuant to prepaid under the terms of the Existing Loan Documents), or if payment is prohibited but defeasance is permitted, defeased, in which case Seller shall be responsible for the principal amount and all other amounts due on account of such Existing Loan, with Purchaser being responsible for any prepayment penalty or defeasance costs and all other Prepayment and Defeasance Costs; or (ii) that Purchaser assume such loan (provided the same is permitted to be assumed under the terms of the Existing Loan Documents), without modification of the Existing Loan Documents except as otherwise approved by Purchaser, in which event the Cash Portion of the Purchase Price will be reduced by the principal amount and delinquent amounts due on account of such Existing Loan as provided in Section 3A, with Purchaser being responsible for any assumption fees and all other Prepayment and Defeasance Costs; provided, however, that such election shall be conditioned upon the applicable lender agreeing that Seller and any guarantor of the applicable loan shall be released from any post-closing obligations. Once an election has been made by Purchaser to assume a loan, following expiration of the Feasibility Period, should Purchaser be unwilling or unable to proceed with the loan assumption due to conditions imposed by the applicable lender or any other cause other than Seller’s default hereunder or under the Existing Loan Documents, Purchaser shall nonetheless be obligated to proceed to closing with respect to the applicable Property either by prepaying or defeasing the applicable loan in accordance with the terms of this Agreement, if permitted by the Existing Loan Documents. Purchaser and Seller shall each use its good faith reasonable efforts to secure any consent or approval necessary to prepay, assume or defease each Existing Loan, including, but not limited to, supplying Lender with such information as Lender shall require, as soon as reasonably possible following the Effective Date. Purchaser and Seller shall each act in good faith to execute and deliver all documents and agreements necessary to effect the prepayment, assumption or defeasance of each Existing Loan. Any assumption documentation shall include the lender’s certification as to the absence of defaults, confirmation of all amounts due, and such other information as Purchaser shall reasonably request. Notwithstanding anything to the contrary contained in Section 1, and despite the parties’ good faith efforts to close on all Properties at the same time, should the timing of necessary consents and approvals be such that Purchaser and the applicable lender are in a position to complete the applicable prepayment, assumption or defeasance on one or more, but not all, of the Properties, Purchaser shall have the right and option to elect to close the purchase of such Properties and defer the closing for those Properties which remain, in which event the following shall apply: (i) Purchaser shall provide Seller and Escrow Agent not less than five (5) business days prior written notice of its election, whereupon the Agreement shall be deemed to constitute four separate agreements, one for the purchase and sale of each of the Properties, subject, however, to Section 1 of this Agreement, for the purchase price allocated to that Property as set forth on Schedule 3. (ii) the Deposit and any interest thereon held by Escrow Agent shall not be allocated, credited to the Purchase Price or released until the closing for the last remaining Property (except in the event of a default). (iii) provide any guaranty or indemnity with respect All other terms of this Agreement shall apply to an Existing Loan other than each transaction as appropriate in the replacement context of the most recent existing guarantees and indemnities by the Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or after the applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing LoanProperty.

Existing Loans. At or On the Execution Date, the aggregate balance of the loans outstanding under the Second Amended and Restated Credit Agreement is $37,000,000 (the "Existing Loans"). All Existing Loans shall be deemed to be funded under this Agreement as of the Effective Date and shall constitute Loans hereunder for all purposes, and no notice requesting a borrowing thereof shall be required hereunder. All fees accrued on such Existing Loans prior to the applicable Closing, (i) Effective Date shall be for the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts benefit of the Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or administrative agent and the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released (collectively, the “Existing Loan Indemnification Obligations”). In connection with obtaining any Required Third Party Consent from a lender under an Existing Loan, in no event will the Purchaser Parties, for themselves or any of their Affiliates, be required to repay any portion of the outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required lenders pursuant to the terms of the Second Amended and Restated Credit Agreement. All fees accrued and accruing on such Existing Loans on and after the Effective Date shall be for the benefit of the Lenders pursuant to the terms of this Agreement.. THE ADMINISTRATIVE AGENT Appointment; Nature of Relationship. ▇▇ ▇▇▇▇▇▇ Chase Bank, N.A. is hereby appointed by each of the Lenders and the LC Issuers as its contractual representative (herein referred to as the "Administrative Agent") hereunder and under each other Loan Document, and each of the Lenders and each of the LC Issuers irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender and such LC Issuer with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article XI. Notwithstanding the use of the defined term "Administrative Agent," it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender or any LC Issuer by reason of this Agreement or any other Loan Document and that the Administrative Agent is merely acting as the contractual representative of the Lenders and the LC Issuers with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders' and LC Issuers' contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any of the Lenders or any of the LC Issuers, (ii) is a "representative" of the Lenders and the LC Issuers within the meaning of the term "secured party" as defined in the Illinois Uniform Commercial Code and (iii) provide any guaranty or indemnity with respect is acting as an independent contractor, the rights and duties of which are limited to an Existing those expressly set forth in this Agreement and the other Loan other than the replacement Documents. Each of the most recent existing guarantees Lenders and indemnities by the Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or after the applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights each of the borrower LC Issuers hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loaneach LC Issuer hereby waives.

Existing Loans. At or prior to the applicable Closing, (i) the A. It is Purchaser’s and Sellers’ intent that Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by assume the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and applicable Seller’s obligations as borrower under each of their applicable Affiliates from any Liability in respect of obligations Existing Loan first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing date of such assumption, and until (y) take an assignment of such time Seller’s obligations as borrower under the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations Documents first arising on or from and after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters date of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released assignment (collectively, the “Existing Loan Indemnification ObligationsAssumption”). In connection with obtaining any Required Third Party Consent from a Purchaser shall pay all costs and expenses of each Loan Assumption including, without limitation, all loan assumption fees, lender under an Existing Loanreview fees, in no event will servicer fees and the Purchaser Parties, for themselves or any of their Affiliates, be required to repay any portion of the outstanding principal balance legal fees and expenses of the Existing LoanLenders’ counsel, if any, as well as any enforceability or other legal opinions required by the Existing Lender (iiexcluding only authority opinions for the existing borrower and guarantors) fund (collectively, “Loan Assumption Fees”), whether or not Loan Assumption Commitments shall be issued or consummated. Purchaser shall protect, defend, indemnify and hold Sellers and Holdings harmless for any additional reserves except Loan Assumption Fees which obligation shall survive the termination of this Agreement relative to the extent specifically required pursuant Property to which such Loan Assumption Fees pertain. Notwithstanding the foregoing, each of the parties shall pay its own legal fees with respect to a Loan Assumption. B. Within five (5) business days following the execution and delivery of this Agreement, Sellers shall take the steps necessary to request that each Existing Lender allow Purchaser or its designee to assume the applicable Existing Loans. Purchaser shall exercise good faith commercially reasonable efforts, in a timely manner, to satisfy the Existing Lenders’ requests for information regarding Purchaser, and Seller shall exercise good faith commercially reasonable efforts, in a timely manner, to obtain from the holder of each of the Existing Loans (the “Existing Lenders”), its formal written consent to the Loan Assumptions on the same terms and conditions as set forth in the Existing Loan Documents with such modifications thereto as Purchaser shall reasonably request (but excluding any changes to the economic terms of the Existing Loans) (the “Loan DocumentsAssumption Commitments”) on or before the date that is two hundred forty (240) days after the Effective Date (the “Loan Assumption Commitment Outside Date”). Notwithstanding anything herein to the contrary, (iii) if an Existing Lender requires Purchaser to provide any a replacement non-recourse careveout guaranty or indemnity as a condition precedent to granting its consent to a Loan Assumption, then Purchaser shall provide an affiliate as a replacement non-recourse carveout guarantor. C. The Closing with respect to an Existing each Property that is subject to a Loan other than Assumption shall occur upon the replacement later of (x) the First Closing Date and (y) the date that is twenty (20) days after the date of receipt of the most recent existing guarantees and indemnities applicable Loan Assumption Commitment. If the Loan Assumption Commitment with respect to any Loan Assumption is not obtained on or before the Loan Assumption Commitment Outside Date, then the Properties that are the subject of any such Loan Assumption shall be excluded from the Acquired Assets, in which event the Purchase Price shall be reduced by the Seller Parties in substantially allocated Purchase Price for such excluded Properties and Sellers and Purchaser shall cause Escrowee to return the same form as allocable portion of the most recent existing guarantees and indemnities and only with respect remaining ▇▇▇▇▇▇▇ Money to Purchaser. Notwithstanding the foregoing, either Sellers or Purchaser may elect to continue pursuing such Loan Assumption by delivering written notice of obligations first arising such election to the other party on or before the Loan Assumption Commitment Outside Date (the “Extension Election”), in which event Sellers and Purchaser shall continue to pursue such Loan Assumption in accordance with the terms of this Section 11. Either Sellers or Purchaser (such party, the “Electing Party”) may, commencing ninety (90) days after the Effective Date (“Litigation Exercise Period”), elect by written notice of such election to the other party to have Sellers, at the Electing Party’s sole cost and expense, pursue a legal or equitable action against the applicable Existing Lender to cause such Existing Lender to grant its consent to such Loan Assumption. Upon any such election by the Electing Party, such Electing Party shall use good faith efforts consistent with prudent business judgment to diligently pursue such action against the applicable Existing Lender, provided that (i) the counsel for the Electing Party who shall pursue such action shall be reasonably satisfactory to the other party, and (ii) the non-Electing Party may, in its sole discretion, participate in such action and engage its own counsel (subject to the Electing Party’s reasonable approval) for such purpose. With respect to a Property for which either party has made an Extension Election, in the event the applicable Closing has not occurred for such Property for which a Closing is outstanding pursuant to this Section 11(C) as of the date that is three hundred sixty (360) days after Effective Date, either party shall have the right to terminate this Agreement relative to such Property and (iv) otherwise amend the Existing Loans related Acquired Assets, in which event Sellers and Purchaser shall cause Escrowee to increase return the obligations or reduce the rights allocable portion of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loanremaining ▇▇▇▇▇▇▇ Money to Purchaser.

Existing Loans. At or prior to the applicable Closing, (ia) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the Seller Parties to cause each lender The parties’ obligations under this Agreement with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause Individual Premises are conditioned upon (i), from and after ) obtaining the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate written consent of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released holder or holders (collectively, the “Existing Lenders”) of the Existing Loans encumbering or relating to such Individual Premises (but not the other Individual Premises) to, and only to, (A) the sale of the applicable Individual Premises to Purchaser pursuant to this Agreement, (B) in the case of Existing Mortgage Loans, the assumption by the applicable Subsidiary Owner which acquires fee (or leasehold, as applicable) title to such Individual Premises of the applicable Existing Mortgage Loan, and (C) in the case of Existing Mezzanine Loans, the substitution of one or more Subsidiaries that are direct and indirect owners of such Subsidiary Owner(s) as the borrowers under the applicable Existing Mezzanine Loan(s) and the assumption of the applicable Existing Mezzanine Loan(s) by such substitute borrowers in connection therewith (collectively, the “Lenders’ Consent”), and (ii) subject to strict compliance by Purchaser with Purchaser’s obligations under this Section 38, the closing of the loan assumption transactions for the applicable Existing Mortgage Loan(s) and Existing Mezzanine Loan(s) described in clauses (B) and (C) above (collectively, the “Loan Indemnification ObligationsAssumptions”). In Purchaser shall not request the Existing Lenders’ consent to any matter other than the matters comprising Lenders’ Consent as expressly set forth in this Section 38(a), including, without limitation, to any subordinate indebtedness (provided that Purchaser shall have the right to request that the Existing Lenders agree to make appropriate amendments to the documents evidencing and securing the Existing Loan as described on Schedule 38(a) hereto), and the obligations of Seller and Purchaser under this Agreement shall not be subject to or conditioned upon obtaining any other consent of any kind from the Existing Lenders. (b) On or before the date that is seven (7) business days after the date of this Agreement, Seller and Purchaser shall notify the Existing Lenders of the proposed conveyance to Purchaser (or a Subsidiary Owner) and request that the Existing Lenders provide Lenders’ Consent, and Purchaser shall deliver to the Existing Lenders an application for one or more of Subsidiaries to assume the Existing Loans together with (i) a copy of this Agreement and all information required to be delivered to the Existing Lenders pursuant to the provisions of the applicable Existing Loan(s) in connection with obtaining a request for the Lenders’ Consent, including a structure chart containing an organizational structure with the actual names of all entities and all direct and indirect holders of any Required Third Party Consent ownership interests in such entities (other than any such entities listed on a national public stock exchange or stock quotation system), and (ii) the information and other items set forth on Schedule 38(b) attached hereto. Purchaser shall have the right to modify such application to reflect any changes to Purchaser’s ownership structure which are permitted under this Agreement at any time prior to July 1, 2008; provided, that if Purchaser makes any such modification after the date that is fifteen (15) days after the earlier to occur of (i) the seventh (7th) business day after the date hereof, and (ii) the date that Seller submits the aforesaid application to the Existing Lenders, then the per diem interest amounts that would otherwise be due and payable from a lender under an and after the Outside Date as set forth in Section 38(e) below shall begin to accrue on the date that is the same number of days prior to the Outside Date as the number of days after the date that is fifteen (15) days after the date hereof on which Purchaser submitted such modification to the Existing Loan, in no event will the Purchaser PartiesLenders (so, for themselves or example, if Purchaser submits any such modification on the date that is twenty five (25) days after the date hereof, then such interest shall begin to accrue on the date that is ten (10) days prior to the Outside Date) and Purchaser and BPLP shall be obligated to commence payment of their Affiliatessuch interest from and after such accelerated date. Thereafter, be promptly upon request therefor (and in any event within three (3) business days), Purchaser shall deliver to the Existing Lenders such other information and items as may required to repay any portion be delivered pursuant to the provisions of the outstanding principal balance applicable Existing Loan(s) or as the applicable Existing Loan(s) may reasonably request in order to evaluate the proposed assumption of the Existing Loan, (ii) fund any additional reserves except Loans by the applicable Subsidiaries and process the request for Lenders’ Consent or which are otherwise customarily required or requested by lenders in connection loan assumption transactions similar to the extent specifically loan assumptions that are the subject of the Lenders’ Consent. Purchaser shall offer to the Existing Lenders, as a substitute guarantor under the existing guaranties and indemnities, BPLP or one or more other persons or entities satisfactory to the Existing Lenders (the “Substitute Guarantor”) (it being understood that if the Existing Lenders do not accept the other persons or entities, the Substitute Guarantor will be BPLP) in respect of liability that accrues from and after the Closing Date for the applicable Individual Premises so that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is released by the Existing Lenders from all guarantees and indemnities under the Existing Loans for the period arising from and after the Closing Date. Such information shall state that Purchaser is replacing the existing property manager with BPLP (or a wholly owned direct or indirect subsidiary of BPLP that either satisfies the applicable requirements set forth in the loan documents for the applicable Existing Loan(s) or otherwise satisfies the requirements of the applicable Existing Lender) pursuant to one or more management agreements in a form required by the Existing Lenders. Purchaser’s submission shall be accompanied by (A) Purchaser’s check in payment of any advance legal fees required by the Existing Lenders to commence and expedite the processing of such request, and (B) Seller’s check in payment of any application fee and any processing fee required by the Existing Lenders to commence and expedite the processing of such submission (subject, however, to Section 38(f) hereof). TIME SHALL BE OF THE ESSENCE with respect to the obligation of Purchaser to provide the information and instruments described in this Section 38(b). (c) Purchaser shall cause the applicable Subsidiaries to execute and/or deliver or cause to be executed and/or delivered to the Existing Lenders one or more assumption agreements, pledge and security agreements, certificated securities, financing statements, legal opinions (including non-consolidation opinions), resolutions, certificates, evidence of all-risk, liability and other insurance coverages (and from insurance carriers) which comply with the provisions of the applicable Existing Loan(s), title insurance policies and/or endorsements, UCC insurance policies, and such other agreements, instruments and documents in each case as are required pursuant to the terms of the applicable Existing Loan(s) or which are customarily required by lenders in connection loan assumption transactions similar to the loan assumptions that are the subject of the Lenders’ Consent or which the Existing Lenders may otherwise reasonably require in connection with the acquisition of the Premises by Purchaser and/or such Subsidiaries and obtaining the Lenders’ Consent and closing the Loan Assumptions, and Purchaser shall otherwise comply with all of the requirements and provisions of the Existing Loan Documents that are conditions to obtaining Lenders’ Consent and closing the Loan Assumptions, including such provisions requiring certain affiliated entities to be bankruptcy-remote, single-purpose entities. Without limiting the generality of the foregoing, Purchaser shall cause Substitute Guarantor to execute and deliver replacement guaranties and indemnities in the form required by the Existing Loan Documents. Seller shall execute and deliver such releases of the Existing Lenders as may be requested by the Existing Lenders to obtain Lenders’ Consent and close the Loan Assumptions. Purchaser, and the Subsidiaries that assume and become borrowers under the Existing Loans, shall indemnify, defend and hold Seller, and its direct and indirect equity owners that are borrowers and/or guarantors under the Existing Loans, harmless from and against any claims, damages, losses, liabilities, judgments, costs and expenses, including, but not limited to, attorneys’ fees and disbursements arising under the Existing Loan Documents from and after the Closing Date, such indemnity to survive the Closing. (iiid) provide Purchaser and Seller shall cooperate with the Existing Lenders and each other, and act diligently and in good faith, to expeditiously procure Lenders’ Consent. Without limiting the foregoing or any guaranty of the other provisions of this Section 38, Purchaser shall dedicate and devote all necessary resources, timely make all required submission and deliveries to the Existing Lenders, their respective servicers and any applicable rating agencies, timely respond to all drafts of documents to be executed or indemnity delivered in connection with the Loan Assumptions, timely respond to all requirements and requests of any Existing Lenders, their respective servicers and any applicable rating agencies to the extent required pursuant to the terms of the applicable Existing Loan(s) or customarily required or requested in connection loan assumption transactions similar to the loan assumptions that are the subject of the Lenders’ Consent or otherwise reasonably required or requested, all of which submissions, deliveries, responses shall be made as soon as is reasonably practicable (and in any event within three (3) business days), and otherwise exercise all due diligence to expeditiously procure Lenders’ Consent and to complete and close the Loan Assumptions within seven (7) business days after the Lenders’ Consent has been obtained, as such seven (7) business day period may be extended on a day-by-day basis for such period of time as is reasonably necessary to (i) obtain any rating agency no-downgrade confirmations that may be required as a condition to any such Lenders’ Consent or (ii) provided Purchaser has strictly complied with its obligations under this Section 38, to close the applicable Loan Assumption(s) (it being understood, therefore, that such seven (7) day period, and, accordingly, the Scheduled Closing Date for the applicable Individual Premises, may be extended as provided in the foregoing clauses (i) and (ii)). The parties acknowledge that if (i) the applicable Lender’s Consent remains effective only for a limited period of time, and (ii) Seller exercises Seller’s rights as otherwise provided in this Agreement to adjourn the Closing for the applicable Individual Premises to a date that occurs after the date that Lender’s Consent lapses (after giving effect to any extensions thereof) and such Lender’s Consent is not again obtained on or before the day which is ten (10) business days after such lapse, then Purchaser shall not have responsibility therefor, and, accordingly, this Agreement shall terminate as provided in this Section 38 for the applicable Individual Premises or in its entirety, as the case may be. (i) If the Existing Lenders whose consent is required to effectuate the loan assumption by Purchaser or one or more Subsidiaries shall have granted Lender’s Consent with respect to an Existing any Individual Premises but the Loan other Assumption in respect of such Individual Premises is not ready to close by August 11, 2008 (the “Outside Date”) (it being understood, however, that if (i) Seller fails to perform any act required to be performed by Seller pursuant to this Section 38 in connection with obtaining Lenders’ Consent and (ii) such failure continues for more than two (2) business days after the replacement of date Purchaser gives Seller written notice thereof, then the most recent existing guarantees and indemnities Outside Date shall be extended by the number of days that such failure continues thereafter), then (I) Seller Parties may, from time to time, if it so elects and without any abatement in substantially the same form as Purchase Price, adjourn the most recent existing guarantees Scheduled Closing Date for such Individual Premises for a period or periods that does not exceed ninety (90) days in the aggregate by written notice thereof to Purchaser, and indemnities and only with respect of obligations first arising on or after the applicable (II) if Seller does not so elect to adjourn such Scheduled Closing Date, and so long as Purchaser has strictly complied with all of Purchaser’s obligations under this Section 38 (ivand is otherwise not in default under this Agreement), Purchaser may, from time to time, if it so elects and without any abatement in the Purchase Price, adjourn the Scheduled Closing Date for such Individual Premises for a period or periods that does not exceed ninety (90) days in the aggregate by written notice thereof to Seller given within two (2) business days after the then Scheduled Closing Date, time being of the essence. If (A) Seller elects to adjourn a Scheduled Closing Date as provided in clause (I) above and (x) title to the applicable Individual Premises is in the condition required pursuant to Section 5, (y) Seller has otherwise amend delivered to Purchaser the Required Tenant Estoppel Certificates for the applicable Individual Premises and (z) there does not otherwise exist a default or Breach by Seller under this Agreement that would give Purchaser the right to terminate this Agreement (in whole or in part as to the applicable Individual Premises) which default has not been cured by Seller or which termination has not been nullified by Seller pursuant to Section 20(d) above and with respect to which Seller no longer has the right to nullify pursuant to Section 20(d) above, or (B) Purchaser elects to adjourn such Scheduled Closing Date as provided in clause (II) above, then in either case Purchaser and BPLP shall be obligated, on a joint and several basis, to pay to Seller a per diem amount equal to (x) $64,259.00 with respect to the 125 West 55th Premises, (y) $89,367.00 with respect to the 2GCT Premises, and (z) $59,152.00 with respect to the 540 Madison Premises, in each case on a current monthly basis on the 1st day of each calendar month, in arrears, from and after the Outside Date (or, if the conditions set forth in clause (x), clause (y) or clause (z) above are not satisfied on the Outside Date but are thereafter satisfied, then from and after the date on which such conditions are satisfied) until the earlier to occur of the Closing for the applicable Individual Premises or the termination of this Agreement in respect of such Individual Premises (which amounts shall be due and payable whether or not any Closing occurs, and which amounts shall be non-refundable and Seller shall have no liability to Purchaser therefor whatsoever). If the Scheduled Closing Date for more than one Individual Premises is adjourned by Purchaser pursuant to the immediately preceding sentence, then the aggregate amount of such payments shall equal the sum of the per diem amounts set forth in clauses (x), (y) and (z) above for the applicable Individual Premises for which the Scheduled Closing Date has been adjourned. If neither Seller nor Purchaser elects to adjourn the Scheduled Closing Date or no longer has the right to adjourn the Scheduled Closing Date as provided in the preceding sentence, or if, after any such adjournment, subject to strict compliance by Purchaser with Purchaser’s obligations under this Section 38, the applicable Loan Assumption is not ready to close, then this Agreement shall terminate or, provided that the closing under the GM Contribution Agreement shall have occurred, this Agreement shall terminate as to the applicable Individual Premises only, Purchaser shall be entitled to a return of the Deposit (or the portion of the Deposit allocable to such applicable Individual Premises, as the case may be) and neither party hereto shall have any further rights or obligations hereunder with respect to such Individual Premises other than those which are expressly provided to survive the termination hereof. (ii) If the Existing Loans Lenders whose consent is required to increase effectuate the obligations loan assumption by Purchaser or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted one or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loan.more Subsidiaries shall fail or refuse to

Existing Loans. At or prior to the applicable Closing, (ia) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts Certain of the Seller Parties to cause each lender Contributors are borrowers with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released certain loans (collectively, the “Existing Loans”) made by the lenders (collectively, the “Lenders”) and in the original principal amounts set forth on Exhibit I. The Existing Loans are evidenced only by the documents listed on Schedule 2.8 (the “Existing Loan Indemnification ObligationsDocuments”). In connection with obtaining any Required Third Party Consent from a lender under an ) and the other documents related to those Existing LoanLoan Documents. (b) With respect to each Property at the Closing, in no event will the Purchaser Parties, for themselves Partnership (or any of their Affiliates, be required its designee or nominee) shall take title to repay any portion of the outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required pursuant such Property subject to the terms of the Existing Loan Documentsencumbering such Property and, at its option (but subject to the terms of the Tax Protection Agreement), either (A) assume such Existing Loan, (B) cause, entirely at the Partnership’s expense, such Existing Loan to be refinanced in connection with the Closing, or (C) repay such Existing Loans. The parties acknowledge and agree that the Partnership prefers to assume, not refinance, the Existing Loan encumbering the Yonkers Property, and will repay the Acklinis-Ackrik Debt (by making the Acklinis-Ackrik Debt Cash Payment) and certain of the Woodbridge Manchester Debt (by making the Woodbridge-Manchester Debt Cash Payment) at the Closing pursuant to Section 2.8(f). It shall be a condition of the Partnership’s obligations to close on the purchase of each Property that, to the extent that the Partnership assumes the Existing Loan with respect to any such Property at the Closing: (i) the outstanding balance of such Existing Loan at the Closing shall be in the amount as set forth in Exhibit I (taking into account payments and credits applied after the Effective Date as shall be set forth on an updated Exhibit I provided by the Contributors prior to Closing) and otherwise consistent with Exhibit I (in each case, subject to immaterial discrepancies due to unintended errors in the Contributors’ calculations); (ii) a consent agreement (and other documents and certificates required in connection with the ACTIVE/90358678.5 assumption of the Existing Loans), in a form customarily required by the applicable Lender and reasonably satisfactory to the applicable Contributor and the Partnership, is obtained from such Lender by the parties prior to the Closing pursuant to which such Lender (a) consents to the transfer of the applicable Property to the Partnership or to a wholly owned affiliate of the Partnership (and the change in management thereof) subject to the applicable Existing Loan, (b) represents that the Contributor identified as the borrower under such Loan on Exhibit I hereto is not then in default of its monetary obligations under the existing Loan Documents and, to such Lender’s knowledge, is not then in default in the performance of any of its other material covenants, agreements or obligations under any Existing Loan Document, (c) certifies to the outstanding balance and reserves for the applicable Existing Loan, and (d) approves New Guarantor as a replacement “guarantor” (a “guarantor” including an “indemnitor”) for all purposes from and after the Closing under the Existing Guaranty for such Loan and, except as otherwise provided in Section 2.8(c) below, releases the existing Guarantor (and all other partners and members of the Contributor of the applicable Property) from liability for any such prospective liability (collectively, the “Consents”); and (iii) provide any guaranty or indemnity and all conditions to the applicable Lenders’ consent to the foregoing as set forth in the Consents and the responsibility of the Contributors to perform pursuant to this Agreement shall have been satisfied. Each Contributor and the Partnership agree to render reasonable assistance to the other in obtaining the foregoing Consents and in connection with the refinancing of any of the Existing Loans, and to keep one another informed of progress with respect to an the same and to satisfy all conditions as set forth therein. Notwithstanding anything contained to the contrary in this Section 2.8(b) or elsewhere in this Agreement, if the Consents or any other documents executed in connection with the assumption of any Existing Loan other than are not obtainable from the replacement Lender within one hundred five (105) days after the date of this Agreement or contain provisions materially adverse to the borrower’s rights or obligations thereunder that are not included in the Existing Loan Documents provided to the Partnership prior to the Effective Date, then (y) the Partnership shall refinance such Existing Loan and (z) receipt of Consents as set forth in Section 5.6(i) and 5.7(e) shall not be a condition to Closing; provided that the Additional Woodbridge-Manchester Debt may be increased by up to $500,000 prior to Closing. The Contributors shall not cause or suffer the amount of the most recent existing guarantees principal balance of the Woodbridge Notes or the Acklinis-Ackrik Debt outstanding as of the date hereof to be reduced or increased prior to Closing. (c) Subject to the terms of Section 2.8(b), the Partnership (or its designee or nominee taking title to the applicable Property) shall, with respect to the Existing Loans that the Partnership assumes rather than refinances, assume all obligations of the Contributors first arising from and indemnities after the Closing Date under the Existing Loan Documents, as such Existing Loan Documents shall have been modified pursuant to the Consents, subject to the non-recourse and liability limitations contained therein. The Partnership (referred to herein from time to time as the “New Guarantor”) shall, with respect to the Existing Loans that the Partnership assumes rather than refinances, at the Closing execute and deliver to each Lender a replacement guaranty customarily required by such Lender in connection with a mortgage assumption (each, a “New Guaranty”) consistent in scope with the guaranty given by the Seller Parties existing guarantor(s) under such Existing Loan (each, an “Existing Guarantor”) in substantially connection with the same form as the most recent existing guarantees and indemnities and only closing of such Existing Loans (each, an “Existing Guaranty”) with respect of to obligations and liabilities under the applicable Existing Loan Documents that first arising arise on or after the Closing. The New Guaranty ACTIVE/90358678.5 shall include a release of the existing guarantor from obligations and liabilities under the Existing Loan Documents that first arise on or after the Closing and that are not attributable to acts or omissions of such Existing Guarantor or the applicable Contributor occurring prior to the Closing Date or be accompanied with such release(s) from the applicable Lender(s), but receipt of such a release shall not be a condition of the Closing. New Guarantor shall cooperate in good faith and timely provide such information as is reasonably required with respect to each New Guaranty. Subject to the provisions of Section 2.8(e) below, in no event shall the Partnership assume any liability under any document which is not listed on Schedule 2.8. If the Partnership assumes an Existing Loan and is unable to obtain a prospective release of an Existing Guarantor as described above, the Partnership, at Closing, must deliver an indemnity by the Partnership in favor of that guarantor with respect to any obligations or liability the guarantor has under the Existing Guaranty that are not attributable to acts or omissions of such Existing Guarantor or the applicable Contributor occurring prior to the Closing Date. (d) Anything elsewhere to the contrary notwithstanding, the Property transfers by the Contributors to the Partnership shall be on an “all or nothing” basis. The Partnership shall have no right and the Contributors shall have no obligation to convey any single Property or any portion of a Property from the transactions contemplated hereby if not all of the Properties are being conveyed. (ive) otherwise amend The Partnership shall be responsible for all out-of-pocket costs or charges, including, without limitation, prepayment penalties, defeasance costs, swap termination charges and any attorneys’ fees or service charges, payable to the Lenders (and/or swap counterparties) in connection with the assumption, refinancing and/or repayment of the Existing Loans pursuant to increase the obligations Existing Loan Documents and the Consents for the assumption or reduce the rights attempted assumption of the borrower and the guarantors thereunder. From the date hereof until the applicable ClosingExisting Loans, including, without the consent limitation, any assumption fees payable under any of the Purchaser Parties Existing Loan Documents. The Partnership shall also be responsible for all costs or charges, including, without limitation, any attorneys’ fees or service charges or rating agency fees or expenses, payable to any of the new Lenders in connection with the refinancing or repayment or assumption or attempted assumption of the Existing Loans pursuant to the Existing Loan Documents. (which consent may be granted or withheld in f) The Partnership shall repay the Purchaser Parties sole discretionAcklinis-Ackrik Debt (by making the Acklinis-Ackrik Debt Dash Payment) make any voluntary prepayment and certain of any Existing Loanthe Woodbridge Manchester Debt (by making the Woodbridge-Manchester Debt Cash Payment) with cash at the Closing.