EX-10.1






Exhibit 10.1




EXECUTION COPY




MEMBERSHIP INTEREST PURCHASE, OPTION




AND




INVESTOR RIGHTS AGREEMENT




Among




OPTEUM INC.,




OPTEUM FINANCIAL SERVICES, LLC




and




CITIGROUP GLOBAL MARKETS REALTY CORP.




Dated as of December 21, 2006




	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE IDEFINITIONS
	 	 	1	 	 	 	 	 	 	 	 	 
	Section 1.1.
	 	Definitions
	 	 	1	 	 	 	 	 
	Section 1.2.
	 	Other Defined Terms
	 	 	5	 	 	 	 	 
	ARTICLE IIPURCHASE AND SALE OF MEMBERSHIP INTERESTS
	 	 	7	 	 	 	 	 
	Section 2.1.
	 	Purchase and Sale
	 	 	7	 	 	 	 	 
	Section 2.2.
	 	Purchase Price
	 	 	7	 	 	 	 	 
	Section 2.3.
	 	Closing
	 	 	7	 	 	 	 	 
	Section 2.4.
	 	Option to Purchase Additional Interests
	 	 	7	 	 	 	 	 
	Section 2.5.
	 	Reclassification of Company Membership Interests
	 	 	8	 	 	 	 	 
	Section 2.6.
	 	Anti-Dilution
	 	 	9	 	 	 	 	 
	Section 2.7.
	 	Repurchase Rights; Sale of Assets
	 	 	10	 	 	 	 	 
	Section 2.8.
	 	Drag-Along Rights
	 	 	11	 	 	 	 	 
	Section 2.9.
	 	Tag-Along Rights
	 	 	12	 	 	 	 	 
	ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF PARENT AND THE COMPANY
	 	 	 	 	 	 	13	 
	Section 3.1.
	 	Representations of Parent
	 	 	13	 	 	 	 	 
	Section 3.2.
	 	Corporate Organization and Authority
	 	 	15	 	 	 	 	 
	Section 3.3.
	 	Binding Effect of Agreement
	 	 	15	 	 	 	 	 
	Section 3.4.
	 	No Conflicts
	 	 	15	 	 	 	 	 
	Section 3.5.
	 	Consents and Approvals
	 	 	15	 	 	 	 	 
	Section 3.6.
	 	Capitalization
	 	 	16	 	 	 	 	 
	Section 3.7.
	 	Title to Assets
	 	 	16	 	 	 	 	 
	Section 3.8.
	 	Financial Statements
	 	 	16	 	 	 	 	 
	Section 3.9.
	 	Events Subsequent to Most Recent Fiscal Month End
	 	 	16	 	 	 	 	 
	Section 3.10.
	 	Undisclosed Liabilities
	 	 	16	 	 	 	 	 
	Section 3.11.
	 	Legal Compliance
	 	 	17	 	 	 	 	 
	Section 3.12.
	 	Tax Matters
	 	 	17	 	 	 	 	 
	Section 3.13.
	 	Contracts
	 	 	17	 	 	 	 	 
	Section 3.14.
	 	Insurance
	 	 	17	 	 	 	 	 
	Section 3.15.
	 	Litigation
	 	 	17	 	 	 	 	 
	Section 3.16.
	 	ERISA
	 	 	18	 	 	 	 	 
	Section 3.17.
	 	Subsidiaries
	 	 	18	 	 	 	 	 
	Section 3.18.
	 	Possession of Licenses and Permits
	 	 	18	 	 	 	 	 
	Section 3.19.
	 	Independent Auditors
	 	 	18	 	 	 	 	 
	Section 3.20.
	 	Not an Investment Company
	 	 	18	 	 	 	 	 
	Section 3.21.
	 	No General Solicitation
	 	 	19	 	 	 	 	 
	Section 3.22.
	 	No Registration
	 	 	19	 	 	 	 	 
	Section 3.23.
	 	No Integration
	 	 	19	 	 	 	 	 
	Section 3.24.
	 	No Other Representations
	 	 	19	 	 	 	 	 
	ARTICLE IVREPRESENTATIONS AND WARRANTIES OF PURCHASER
	 	 	19	 	 	 	 	 
	Section 4.1.
	 	Organization and Qualification
	 	 	19	 	 	 	 	 
	Section 4.2.
	 	Authority; Non-Contravention; Approvals
	 	 	19	 	 	 	 	 
	Section 4.3.
	 	Restricted Securities
	 	 	20	 	 	 	 	 
	Section 4.4.
	 	Subscriber Bears Economic Risk
	 	 	20	 	 	 	 	 
	Section 4.5.
	 	Acquisition For Own Account
	 	 	20	 	 	 	 	 
	Section 4.6.
	 	Accredited Investor
	 	 	20	 	 	 	 	 
	Section 4.7.
	 	Information
	 	 	20	 	 	 	 	 
	Section 4.8.
	 	No Public Market
	 	 	21	 	 	 	 	 
	Section 4.9.
	 	Legends
	 	 	21	 	 	 	 	 
	ARTICLE VCOVENANTS
	 	 	 	 	 	 	21	 	 	 	 	 
	Section 5.1.
	 	Transfer Taxes
	 	 	21	 	 	 	 	 
	Section 5.2.
	 	Public Announcements
	 	 	21	 	 	 	 	 
	Section 5.3.
	 	Further Assurances; Post-Closing Cooperation
	 	 	21	 	 	 	 	 
	Section 5.4.
	 	Notification
	 	 	21	 	 	 	 	 
	Section 5.5.
	 	Reporting Requirements
	 	 	22	 	 	 	 	 
	Section 5.6.
	 	Tax Status
	 	 	22	 	 	 	 	 
	Section 5.7.
	 	Liquidation Provisions
	 	 	22	 	 	 	 	 
	Section 5.8.
	 	Intercompany Transactions
	 	 	22	 	 	 	 	 
	ARTICLE VICONDITIONS TO OBLIGATIONS OF PARTIES
	 	 	22	 	 	 	 	 
	Section 6.1.
	 	Conditions Precedent to Each Party’s Obligations at the Closings
	 	 	22	 	 	 	 	 
	Section 6.2.
	 	Conditions Precedent to the Obligations of Parent at Closing
	 	 	22	 	 	 	 	 
	Section 6.3.
	 	Conditions to the Obligations of Purchaser at Closing
	 	 	23	 	 	 	 	 
	Section 6.4.
	 	Conditions Precedent to the Obligations of Parent at Option Closing
	 	 	24	 	 	 	 	 
	Section 6.5.
	 	Conditions to the Obligations of Purchaser at Option Closing
	 	 	24	 	 	 	 	 
	ARTICLE VIIDISPUTE RESOLUTION
	 	 	 	 	 	 	25	 	 	 	 	 
	Section 7.1.
	 	Survival of Representations and Warranties
	 	 	25	 	 	 	 	 
	Section 7.2.
	 	Alternative Dispute Resolution
	 	 	25	 	 	 	 	 
	ARTICLE VIIIMISCELLANEOUS
	 	 	 	 	 	 	27	 	 	 	 	 
	Section 8.1.
	 	Notices
	 	 	27	 	 	 	 	 
	Section 8.2.
	 	Entire Agreement
	 	 	27	 	 	 	 	 
	Section 8.3.
	 	Expenses
	 	 	28	 	 	 	 	 
	Section 8.4.
	 	Waiver
	 	 	28	 	 	 	 	 
	Section 8.5.
	 	Amendment
	 	 	28	 	 	 	 	 
	Section 8.6.
	 	No Third-Party Beneficiary
	 	 	28	 	 	 	 	 
	Section 8.7.
	 	Assignment; Binding Effect
	 	 	28	 	 	 	 	 
	Section 8.8.
	 	CONSENT TO JURISDICTION AND SERVICE OF PROCESS
	 	 	28	 	 	 	 	 
	Section 8.9.
	 	Invalid Provisions
	 	 	29	 	 	 	 	 
	Section 8.10.
	 	GOVERNING LAW
	 	 	29	 	 	 	 	 
	Section 8.11.
	 	Counterparts
	 	 	29	 	 	 	 	 
	Section 8.12.
	 	Disclosure Schedule
	 	 	29	 	 	 	 	 
	Section 8.13.
	 	Interpretation
	 	 	29	 	 	 	 	 






1




MEMBERSHIP INTEREST PURCHASE, OPTION AND INVESTOR RIGHTS AGREEMENT




MEMBERSHIP INTEREST PURCHASE, OPTION AND INVESTOR RIGHTS AGREEMENT, dated as of December
21, 2006, by and between CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation
(“Purchaser”), OPTEUM INC., a Maryland corporation (“Parent”), and OPTEUM FINANCIAL
SERVICES, LLC, a Delaware limited liability company (the “Company”).



BACKGROUND




WHEREAS, Parent is the record and beneficial owner of all of the issued and outstanding
limited liability company interests of the Company (the “Company Membership Interests”);



WHEREAS, the Company is engaged in the business of originating and securitizing mortgage loans
in the U.S., and is currently treated (and shall remain treated) as a taxable REIT subsidiary of
Parent within the meaning of Section 856(l) of the Internal Revenue Code of 1986, as amended (the
“Code”)`;



WHEREAS, Parent wishes to sell and dispose of, and Purchaser wishes to purchase, an aggregate
of 7.5% of all of the Company Membership Interests then outstanding (the “Purchased Membership
Interests”), on the terms and subject to the conditions set forth in this Agreement; and



WHEREAS, at the Closing, Parent and Purchaser will enter into the Sixth Amended and Restated
Limited Liability Company Agreement of the Company in the form attached as Exhibit A to
this Agreement (the “Operating Agreement”), which Operating Agreement shall be effective
from and after the Closing Date.



NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained and other valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:



ARTICLE I




DEFINITIONS




Section 1.1. Definitions.



(a) As used in this Agreement, the following terms shall have the following meanings:



“Affiliate” means, with respect to any Person, any other Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or is under common
control with the Person specified. The term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) means possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.



“Agreement” means this Membership Interest Purchase, Option and Investor Rights
Agreement, together with the Exhibits and the Disclosure Schedule attached hereto.



“Business Day” means any day other than a Saturday, Sunday or any day on which banks
located in New York City, New York are authorized or required to be closed for the conduct of
regular banking business.



“Change of Control” means, the occurrence of any of the following:



(a) with respect to Parent:




(i) any consolidation or merger of Parent where (A) the shareholders of Parent,
immediately prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is defined in Rule 13d-3
under the Exchange Act), directly or indirectly, shares representing in the
aggregate 50% or more of the combined voting power of the securities of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any) and (B) the surviving entity is a bank,
broker-dealer or an Affiliate thereof; or




(ii) any consolidation or merger of Parent where (A) the shareholders of
Parent, immediately prior to the consolidation or merger, would not, immediately
after the consolidation or merger, beneficially own (as such term is defined in Rule
13d-3 under the Exchange Act), directly or indirectly, shares representing in the
aggregate 50% or more of the combined voting power of the securities of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any) and (B) the surviving entity is not a bank,
broker-dealer or an Affiliate thereof; or




(iii) there shall occur (A) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any party as a
single plan) of all or substantially all of the assets of Parent, other than a sale
or disposition by Parent of all or substantially all of Parent’s assets to an
entity, at least 50% of the combined voting power of the voting securities of which
are owned by “persons” (as defined below in Section (iv)) in substantially the same
proportion as their ownership of the Parent immediately prior to such sale and other
than sales of Parent’s investment portfolio (or any portion thereof) in the Ordinary
Course of Business or (B) the approval by shareholders of Parent of any plan or
proposal for the liquidation or dissolution of Parent; or




(iv) any “person,” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding the Company, any entity controlling, controlled by or
under common control with Parent, any employee benefit plan of Parent or any such
entity), that is (A) a bank, broker-dealer or Affiliate thereof, or (B) other than a
bank, broker-dealer or Affiliate thereof, in either case, is or becomes the
“beneficial owner” (as defined in Rule 13(d)(3) under the Exchange Act), directly or
indirectly, of securities of Parent representing 30% or more of either (x) the
combined voting power of Parent’s then outstanding securities or (y) the then
outstanding common stock of Parent (in either such case other than as a result of an
acquisition of securities directly from Parent); provided, however,
that, in no event shall a Change in Control be deemed to have occurred upon an
initial public offering or a subsequent public offering of the common stock of
Parent under the Securities Act of 1933, as amended; or



(b) with respect to the Company:




(i) the sale of Company Membership Interests to a bank, broker-dealer or
Affiliate thereof, in which Parent fails to beneficially own, immediately after the
effective time of such transaction, (x) voting interests representing more than
fifty percent (50%) of the voting power of the Company’s outstanding securities
necessary to elect a majority of the Company’s board of managers or (y) equity
interests representing more than 50% of the economic equity represented by the
Company’s outstanding securities; or




(ii) the sale of Company Membership Interests to other than a bank,
broker-dealer or Affiliate thereof, in which Parent fails to beneficially own,
immediately after the effective time of such transaction, (x) voting interests
representing more than fifty percent (50%) of the voting power of the Company’s
outstanding securities necessary to elect a majority of the members of the Company’s
board of managers or (y) equity interests representing more than 50% of the economic
equity represented by the Company’s outstanding securities; or




(iii) a merger, reorganization or consolidation involving the Company, (A) in
which Parent fails to beneficially own, immediately after the effective time of such
transaction (x) voting interests representing more than fifty percent (50%) of the
combined voting power of the surviving entity’s outstanding securities necessary to
elect a majority of the members of such entity’s board of directors or board of
managers or (y) equity interests representing more than 50% of the economic equity
represented by the entity’s outstanding securities and (B) the surviving entity is a
bank, broker-dealer or an Affiliate thereof; or




(iv) a merger, reorganization or consolidation involving the Company, (A) in
which Parent fails to beneficially own, immediately after the effective time of such
transaction (x) voting interests representing more than fifty percent (50%) of the
combined voting power of the surviving entity’s outstanding securities necessary to
elect a majority of the members of such entity’s board of directors or board of
managers or (y) equity interests representing more than 50% of the economic equity
represented by the entity’s outstanding securities and (B) the surviving entity is
not a bank, broker-dealer or an Affiliate thereof; or



(c) the sale of all or substantially all of the assets of the Company in a single transaction
or a series of related transactions; or



(d) with respect to HS Special Purposes, LLC, if HS Special Purposes, LLC ceases to be 100%
owned by the Company.



“Closing” means the closing of the sale and purchase of the Purchased Membership
Interests as contemplated by this Agreement.



“Disclosure Schedules” means the disclosure schedule delivered by Parent and the
Company prior to or concurrently with the execution and delivery of this Agreement.



“Encumbrances” means any and all liens, encumbrances, charges, security interests,
mortgages, pledges, options, title defects, or other adverse claims or restrictions on title of any
nature whatsoever and, when used with respect to any Company Membership Interest, including the
Purchased Membership Interests and the Option Membership Interests, shall include without
limitation, any rights of first refusal or first offer, proxies, voting trusts or agreements.



“Environmental Laws” means all federal, state, and local environmental laws and
regulations applicable to the Company and its Subsidiaries, including, without limitation, those
applicable to emissions to the environment, waste management and waste disposal.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



“Exchange Act” means the Securities Exchange Act of 1934, and any successor statute
thereto, in each case as amended from time to time.



“GAAP” means United States generally accepted accounting principles as in effect on
the date of this Agreement.



“Governmental Authority” means any international, supranational, national, provincial,
regional, federal, state, municipal or local government, any instrumentality, subdivision, court,
administrative or regulatory agency or commission or other authority thereof, or any
quasi-governmental or private body exercising any regulatory, taxing, importing or other
governmental or quasi-governmental authority.



“Liability” means any liability or obligation of whatever kind or nature (whether
known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become due).



“Loan Documents” means the (i) Master Loan and Security Agreement (the “Master
Loan and Security Agreement”), dated as of September 1, 2003, between HS Special Purpose, LLC
and Purchaser together with all amendments thereto, (ii) Master Repurchase Agreement (the
“Master Repurchase Agreement”), dated as of November 3, 2005, between HS Special Purpose,
LLC and Purchaser together with all amendments thereto, (iii) Parent Guaranty, dated as of December
21, 2006, by and between Parent favor of Purchaser, party to the Master Repurchase Agreement,
(iv) Parent Guaranty, dated as of December 21, 2006, by and between Parent in favor of Purchaser,
party to the Master Loan and Security Agreement, (v) Amended and Restated Guaranty, dated as of
December 21, 2006, by and between the Company in favor of Purchaser, party to the Master Repurchase
Agreement, and (vi) Second Amended and Restated Guaranty, dated as of December 21, 2006 by and
between the Company in favor of Purchaser, party to the Master Loan and Security Agreement.



“Losses” means any and all damages, fines, fees, penalties, deficiencies, liabilities,
claims, losses (excluding loss of value), demands, judgments, settlements, actions, obligations and
costs and expenses (including interest, court costs and the reasonable fees and costs of attorneys,
accountants and other experts).



“Material Adverse Effect” or “Material Adverse Change” means any effect or
change that would be materially adverse to the business of the Company, taken as a whole, or to the
ability of any party to consummate timely the transactions contemplated hereby; provided
that none of the following shall be deemed to constitute, and none of the following shall be taken
into account in determining whether there has been, a Material Adverse Effect or Material Adverse
Change: any adverse change, event, development, or effect arising from or relating to (1) national
or international political or social conditions, including the engagement by the United States in
hostilities, whether or not pursuant to the declaration of a national emergency or war, or the
occurrence of any military or terrorist attack upon the U.S., or any of its territories,
possessions, or diplomatic or consular offices or upon any military installation, equipment or
personnel of the U.S., (2) changes in U.S. generally accepted accounting principles, (3) changes in
laws, rules, regulations, orders, or other binding directives issued by any Governmental Authority,
(4) the taking of any action contemplated by this Agreement and the other agreements contemplated
hereby, (5) the announcement or consummation of the transactions contemplated by this Agreement.



“Most Recent Balance Sheet” means the consolidated balance sheet of Parent and its
Subsidiaries as of September 30, 2006.



“Option Closing” means the closing of the sale and purchase of the Option Membership
Interests as contemplated by this Agreement.



“Ordinary Course of Business” means the ordinary course of business consistent with
past practice (including with respect to quantity and frequency).



“Person” means any natural person, corporation, general partnership, limited
partnership, limited or unlimited liability company, proprietorship, joint venture, other business
organization, trust, business trust, union, association, Governmental Authority or other entity.



“Purchaser Membership Interests” means the Purchased Membership Interests and the
Option Membership Interests.



“Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations promulgated thereunder.



“Subsidiary” means, with respect to any Person, any other Person (i) of which the
first Person owns directly or indirectly 50% or more of the outstanding voting stock or other
equity interest in the other Person; (ii) of which the first Person or any other Subsidiary of the
first Person is a general partner or (iii) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other persons performing
similar functions with respect to the other Person are at the time owned by the first Person and/or
one or more of the first Person’s Subsidiaries.



“Tax” or “Taxes” means (a) any and all U.S. federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock, franchise, profits,
withholding, social security (or similar, including FICA), unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind or any charge of any kind in the nature of (or similar to)
taxes whatsoever, including any interest, penalty, or addition thereto, whether disputed or not and
(b) any liability for the payment of any amounts of the type described in clause (a) of this
definition as a result of being a member of an affiliated, consolidated, combined or unitary group
for any period, as a result of any tax sharing or tax allocation agreement, arrangement or
understanding, or as a result of being liable for another person’s taxes as a transferee or
successor, by contract or otherwise.



Section 1.2. Other Defined Terms.



(a) Other terms defined are in the other parts of this Agreement indicated below:



	 	 	 	 	 
	“1934 Act Regulations”
	 	 	3.1	(f)
	 
	 	 	 	 
	“1934 Reports”
	 	 	3.1	(f)
	 
	 	 	 	 
	“Claim”
	 	 	7.2	(a)
	 
	 	 	 	 
	“Class A Interests”
	 	 	2.5	 
	 
	 	 	 	 
	“Class B Interests”
	 	 	2.5	 
	 
	 	 	 	 
	“Closing Date”
	 	 	2.3	 
	 
	 	 	 	 
	“COC Option Exercise Notice”
	 	 	2.4	(d)
	 
	 	 	 	 
	“Company”
	 	Preamble

	 
	 	 	 	 
	“Company Membership Interests”
	 	Recitals

	 
	 	 	 	 
	“Drag-Along Notice”
	 	 	2.8	(a)
	 
	 	 	 	 
	“Financial Statements”
	 	 	3.1	(g)
	 
	 	 	 	 
	“Governmental Licenses”
	 	 	3.18	 
	 
	 	 	 	 
	“Minority Offer”
	 	 	2.9	(a)
	 
	 	 	 	 
	“Minority Sale Notice”
	 	 	2.9	(a)
	 
	 	 	 	 
	“Month-End Financials”
	 	 	3.8	 
	 
	 	 	 	 
	“New Issue Notice”
	 	 	2.6	(a)
	 
	 	 	 	 
	“NIPs”
	 	 	2.6	(a)
	 
	 	 	 	 
	“Operating Agreement”
	 	Recitals

	 
	 	 	 	 
	“Option”
	 	 	2.4	(a)
	 
	 	 	 	 
	“Option Closing Date”
	 	 	2.4	(c)
	 
	 	 	 	 
	“Option Exercise Notice”
	 	 	2.4	(b)
	 
	 	 	 	 
	“Option Expiration Date”
	 	 	2.4	(b)
	 
	 	 	 	 
	“Option Membership Interests”
	 	 	2.4	(a)
	 
	 	 	 	 
	“Option Purchase Price”
	 	 	2.4	(c)
	 
	 	 	 	 
	“Parent”
	 	Preamble

	 
	 	 	 	 
	“Purchase Price”
	 	 	2.2	 
	 
	 	 	 	 
	“Purchased Membership Interests”
	 	Recitals

	 
	 	 	 	 
	“Purchaser”
	 	Preamble

	 
	 	 	 	 
	“Redemption Events”
	 	 	2.7	(a)
	 
	 	 	 	 
	“REIT”
	 	 	2.4	(f)
	 
	 	 	 	 
	“Repurchase”
	 	 	2.7	(a)
	 
	 	 	 	 
	“SEC”
	 	 	3.1	(f)
	 
	 	 	 	 






(b) For the purposes of this Agreement, except to the extent that the context otherwise
requires:




(i) when a reference is made in this Agreement to an Article, Section, Exhibit
or Schedule, such reference is to an Article or Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated;




(ii) the table of contents and headings for this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this
Agreement;




(iii) whenever the words “include,” “includes” or “including” (or similar
terms) are used in this Agreement, they are deemed to be followed by the words
“without limitation”;




(iv) the words “hereof,” “herein” and “hereunder” and words of similar import,
when used in this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement;




(v) all terms defined in this Agreement have their defined meanings when used
in any certificate or other document made or delivered pursuant hereto, unless
otherwise defined therein;




(vi) the definitions contained in this Agreement are applicable to the singular
as well as the plural forms of such terms;




(vii) if any action is to be taken by any party hereto pursuant to this
Agreement on a day that is not a Business Day, such action shall be taken on the
next Business Day following such day;




(viii) references to a Person are also to its heirs, personal representatives,
permitted successors and assigns;




(ix) the use of “or” is not intended to be exclusive unless expressly indicated
otherwise;




(x) “contract” includes any note, bond, mortgage, indenture, deed of trust,
loan, credit agreement, franchise concession, contract, agreement, permit, license,
lease, purchase order, sales order, arrangement or other commitment, obligation or
understanding, whether written or oral;




(xi) “assets” shall include “rights,” including rights under contracts; and




(xii) “reasonable efforts” or similar terms shall not require the waiver of any
rights under this Agreement.



ARTICLE II




PURCHASE AND SALE OF MEMBERSHIP INTERESTS




Section 2.1. Purchase and Sale. At the Closing, upon the terms and subject to the
conditions of this Agreement, Parent shall sell, transfer, assign, convey and deliver to Purchaser,
and Purchaser shall purchase from Parent, the Purchased Membership Interests, free and clear of all
Encumbrances (other than Encumbrances created by Purchaser or arising under this Agreement, the
Securities Act or any applicable state law).



Section 2.2. Purchase Price. The purchase price (the “Purchase Price”) to be
paid to Parent by Purchaser for the Purchased Membership Interests at the Closing shall be US
$4,125,000 in cash.



Section 2.3. Closing. The Closing shall be held at the offices of Thacher Proffitt &
Wood LLP, Two World Financial Center, New York, New York 10281 at 10:00 a.m. local time on the
third (3rd) Business Day after the satisfaction or waiver of all of the conditions (other than
those conditions that by their nature are to be satisfied by actions taken at Closing, but subject
to the fulfillment or waiver of those conditions) set forth in ARTICLE VI (the “Closing
Date”).



Section 2.4. Option to Purchase Additional Interests.



(a) Subject to the terms and conditions of this Agreement, Parent hereby grants to Purchaser,
and Purchaser hereby accepts, the right to purchase (the “Option”) from Parent, and Parent
hereby agrees to sell to Purchaser upon the exercise of the Option, additional Company Membership
Interests constituting 7.49% of all of the Company Membership Interests then outstanding (the
“Option Membership Interests”).



(b) Subject to the provisions of this Section 2.4, Purchaser will be entitled to exercise the
Option at any time on or before the first anniversary of the date of this Agreement (the
“Option Expiration Date”), by delivering a written notice (the “Option Exercise
Notice”) to Parent of such exercise. Unless the provisions of Section 2.4(d) are applicable,
following the Option Expiration Date the Option shall terminate without any further action of the
parties hereto and shall be forfeited.



(c) If the Option is exercised, other than pursuant to a COC Option Exercise Notice (as
hereinafter defined), the parties shall use their best efforts to effect the purchase of the Option
Membership Interests as soon as practicable and in any event not later than ten (10) Business Days
after the date on which Purchaser delivers the Option Exercise Notice (the “Option Closing
Date”); provided,  however, that if the Option is not then exercisable as set
forth in Section 2.4(f), the Option Closing Date shall be as set forth in Section 2.4(f). Except
as otherwise provided below in this Section 2.4 and, subject to the limitations set forth in
Section 2.4(b), on the Option Closing Date, Purchaser shall transfer to Parent US $4,119,500 (the
“Option Purchase Price”) in immediately available funds to the bank account designated by
Parent, and Parent shall sell to Purchaser the Option Membership Interests, free and clear of all
Encumbrances (other than Encumbrances created by Purchaser or those arising under this Agreement,
the Securities Act or any applicable state securities laws).



(d) Notwithstanding anything in this Agreement to the contrary, if the Company executes a
definitive agreement with respect to a Change of Control as provided for under any subclause of
clause (b) or subclause (c) of the definition of Change of Control in Section 1(a) of this
Agreement, then, in any such case, Parent shall provide written notice (the “Change of Control
Notice”) to Purchaser and Purchaser shall have fifteen (15) Business Days from the date of
receipt of the Change of Control Notice to deliver a written notice to Parent (the “COC Option
Exercise Notice”) of its election to exercise the Option immediately prior to the occurrence of
such Change of Control. If Purchaser fails to deliver the COC Option Exercise Notice within such
fifteen (15) Business Day period, the Option shall terminate and be of no further force and effect;
provided, however, that if the definitive agreement referred to above is
terminated, the Option Expiration Date shall be extended without any further action by the parties
here, to the later of (x) the Option Expiration Date or (y) the fifteenth (15th)
Business Day following such termination.



(e) If Purchaser is entitled to, and does, deliver a timely COC Option Exercise Notice to
Parent, the Company and Purchaser will work together to ensure that the exercise of the Option in
connection with the Change of Control is on a cashless basis and that Purchaser receives the
consideration to which it is entitled as a result of the applicable Change of Control with respect
to its Option Membership Interests as determined pursuant to Section 2.7 of this Agreement, less
the amount of the applicable Option Purchase Price.



(f) Notwithstanding anything in this Agreement to the contrary, Purchaser shall not be
entitled to exercise the Option (unless a COC Option Exercise Notice is delivered in which case
this Section 2.4(f) shall not apply) to the extent Parent has received a written opinion of legal
counsel stating that such exercise will or is reasonably likely to adversely affect Parent’s
ability to qualify as a real estate investment trust within the meaning of Code Section 856 (a
“REIT”) for the year in which the Option is to be exercised. If Purchaser’s exercise of
the Option is limited pursuant to this Section 2.4(f), Purchaser shall pay to the Company the
Option Exercise Price (if applicable) for the portion of the Option that Purchaser was unable to
exercise and the Company shall issue to Purchaser the Option Membership Interests (newly issued
Class B Membership Interests) that would have, but for the application of this Section 2.4(f),
purchased from Parent. If this Section 2.4(f) is applicable, the Option Closing Date shall occur
within ten (10) Business Days of the delivery of the opinion of legal counsel referred to above.



Section 2.5. Reclassification of Company Membership Interests. Immediately prior to
the Closing, pursuant to the terms of the Operating Agreement, the Company reclassified the Company
Membership interests into two separate series: (a) a new class of Company Membership Interests
that does not have voting rights (the “Class B Interests”) and (b) a new class of Company
Membership Interests that has voting rights, into which all existing Company Membership Interests
at that time, all of which are held by Parent, were initially converted (the “Class A
Interests”). Immediately following such reclassification, Parent elected, pursuant to the
terms of the Operating Agreement, to convert a portion of its Class A Interests equal to the
Purchased Membership Interests into Class B Interests with the intention of selling such Class B
Interests to Purchaser pursuant to the terms of this Agreement. Immediately prior to the Option
Closing, Parent will, pursuant to the terms of the Operating Agreement, convert a portion of its
remaining Class A Interests equal to the Purchased Membership Interests into Class B Interests with
the intention of selling such Class B Interests to Purchaser pursuant to the terms of the Option.



Section 2.6. Anti-Dilution.



(a) If at any time the Company wishes to sell additional equity securities in any sale of
Company Membership Interests or other equity securities which does not result in a Change of
Control or the occurrence of a Redemption Event (whether or not of the same class as the Purchased
Membership Interests), then the Company shall provide not less than thirty (30) days written notice
to Purchaser (the “New Issue Notice”) of its intent to do so. The New Issue Notice shall
set forth: (i) the number and type of securities proposed to be issued by the Company; (ii) the
proposed amount and type of consideration payable therefore and the terms and conditions of
payment; and (iii) that the new issue purchasers (the “NIPs”) have been informed of the
rights provided for in this Section.



(b) For a period of fifteen (15) days following receipt of any New Issue Notice described in
subsection (a) above, Purchaser shall have the right to purchase such portion of the securities
subject to such New Issue Notice on the same terms and conditions as set forth therein, sufficient
to maintain Purchaser’s ownership percentage at the same level as it was immediately prior to the
proposed new issue. Purchaser’s purchase rights shall be exercised or declined by written notice
delivered to the Company within such fifteen (15) day period specifying the number of securities to
be acquired by Purchaser, if any.



(c) If Purchaser does not elect to purchase all of the securities available pursuant to its
rights under subsection (b) above within the fifteen (15) day period set forth therein, the Company
shall have the right, exercisable upon written notice to Purchaser within fifteen (15) days after
the receipt of Purchaser’s notice under subsection (b) above to sell, in addition to the other
securities being sold to the NIP, all of the securities that were not elected to be acquired by
Purchaser on the same terms and conditions as set forth in the New Issue Notice.



(d) If Purchaser elects to purchase any of the securities subject to the New Issue Notice, the
Company shall honor such election to purchase and consummate the sale or sales of such securities
on terms set forth in the New Issue Notice not later than ninety (90) days after delivery of the
New Issue Notice, and at such time the Company shall deliver to Purchaser the certificate(s)
representing the securities to be purchased thereby, each certificate or instrument to be properly
endorsed for transfer or shall update the schedules to the Operating Agreement to reflect such
securities purchase.



(e) If Purchaser does not elect to purchase any securities subject to the New Issue Notice,
subject to compliance with this Section, the Company may consummate the transfer of all of the
securities specified in the New Issue Notice, including those securities that were not purchased by
Purchaser, to the NIPs pursuant to the terms set forth in the New Issue Notice.



(f) If Purchaser has elected to purchase any of the securities subject of the New Issue
Notice, but does not consummate such purchase at the closings scheduled therefore, the Company may
consummate the transfer of such securities to the NIPS, pursuant to the terms set forth in the New
Issue Notice.



(g) Any proposed transfer to a NIP that is not consummated within ninety (90) days after the
expiration of the fifteen (15) day period specified in subsection (c) above or any proposed
transfer on terms and conditions more favorable than those described in the New Issue Notice shall
again be subject to the rights of Purchaser contained in this Section 2.6. 



Section 2.7. Repurchase Rights; Sale of Assets.



(a) Upon any of the events specified below (the “Redemption Events”) either Parent
shall repurchase or the Company shall redeem all of the Purchaser Membership Interests owned by
Purchaser at such time at the price and in accordance with the terms of Section 2.7(b) of this
Agreement (a “Repurchase”):




(i) the sale of Company Membership Interests to a bank, broker-dealer or an
Affiliate thereof, in which Parent continues to beneficially own, immediately after
the effective time of such transaction (x) voting interests representing more than
fifty percent (50%) of the voting power of the Company’s outstanding securities
necessary to elect a majority of the Company’s board of managers or (y) equity
interests representing more than fifty percent (50%) of the economic equity
represented by the Company’s outstanding securities;




(ii) the occurrence of any of the events specified in any subclause of clause
(b) of the definition of Change of Control; or




(iii) the occurrence of any of the events specified in any subclause of clause
(a) of the definition of Change of Control.



(b) In the event of the occurrence of a Redemption Event, the purchase price and the procedure
for such Repurchase shall be as follows:




(i) If the event specified in Section 2.7(a)(i) gives rise to the Redemption
Event, then the purchase price for the Purchaser Membership Interests to be paid by
Parent or the Company shall be the greater of (x) the pro rata value of the
Purchaser Membership Interests based upon the valuation placed upon 100% of the
Company Membership Interests in the contemplated transaction and (y) the pro rata
value of the Purchaser Membership Interests based upon a $55,000,000 valuation of
100% of the Company Membership Interests.




(ii) If any event specified in Section 2.7(a)(ii) gives rise to the Redemption
Event, then the purchase price for the Purchaser Membership Interests to be paid by
Parent or the Company shall be the pro rata value of the Purchaser Membership
Interests based upon the valuation placed upon 100% of the Company Membership
Interests in the contemplated transaction.




(iii) If any event specified in Section 2.7(a)(iii) gives rise to the
Redemption Event, then the purchase price for the Purchaser Membership Interests to
be paid by Parent or the Company shall be the pro rata value of the Purchaser
Membership Interests based on the fair market value of the Company Membership
Interests as determined by the appraisal process described in the next sentence.
Upon the occurrence of an event specified in Section 2.7(a)(iii), the Company shall
choose a third party appraiser to determine the value of the Company Membership
Interests and the third party appraiser shall prepare a report setting forth its
valuation. The valuation report shall be delivered by the Company to Purchaser and
Purchaser shall have a period of ten (10) Business Days to review the valuation
report and raise any objections to such valuation. If Purchaser raises any
objections with respect to the valuation received from the Company’s appraiser
during such ten (10) Business Day period, Purchaser shall retain its own third party
appraiser to determine the value of the Company Membership Interests. Following
receipt of Purchaser’s third party valuation report, Parent shall deliver a copy of
such report to the Company and the fair market value of the Company Membership
Interests shall be the average of the two appraisals. If the appraisal from either
or both third party appraisers specifies a range of value for the Company Membership
Interests rather than a single dollar value the midpoint of the range provided by
such appraiser shall be used for all purposes of the foregoing calculation. The
valuation delivered by the Company’s appraiser (if such valuation is not objected to
or otherwise agreed to by Purchaser) or the average determined in accordance with
the Section 2.7(b)(iii), as the case may be, shall be final, conclusive and binding
on the parties to this Agreement. Notwithstanding anything to the contrary
contained in this Agreement, if, in connection with the consummation of any
transaction resulting from the occurrence of any event specified in Section
2.7(a)(iii), Parent obtains a fairness opinion from an investment bank or other
financial advisor, Parent shall also obtain a fairness opinion with respect to the
valuation placed upon the Company Membership Interests in connection with such
Change of Control (to the effect that the valuation is fair to Purchaser from a
financial point of view) and deliver a copy of such opinion to Purchaser
concurrently with the delivery of the valuation report referenced above.



(c) The Company shall provide at least fifteen (15) days prior written notice to Purchaser of
any Redemption Event. Except in the case of the occurrence of the events in subclause (iv) of
clause (a) of the definition of Change of Control, in which case the closing of the Repurchase
shall occur within five (5) Business Days of (i) Parent’s waiver of the ownership requirements set
forth in its Articles of Incorporation to permit such investment or (ii) the approval by Parent of
any such person becoming a beneficial owner of Parent shares, Parent or the Company shall close the
Repurchase and pay the applicable purchase price for the Purchaser Membership Interests
simultaneously with the completion of the applicable Redemption Event. Purchaser shall execute
such instruments of transfer relating to the Purchaser Membership Interests being transferred and
an amendment to the Operating Agreement withdrawing as a Member, together with any other documents
as may be reasonably required, upon payment of the purchase price set forth herein. Upon
redemption or repurchase of the Purchaser Membership Interests, Purchaser shall no longer have any
rights or interests as a Member of the Company.



(d) If the event specified in clause (c) of the definition of Change of Control occurs and the
proceeds resulting from such sale are distributed to the holders of the Company Membership
Interests in accordance with the provisions of the Operating Agreement, no Redemption Event shall
be deemed to have occurred. If such an event occurs, Purchaser shall be entitled to participate
ratably in the distribution of the assets of the Company pursuant to the liquidation provisions of
the Operating Agreement.



Section 2.8. Drag-Along Rights.



(a) Unless a Redemption Event has occurred, if Parent enters into a definitive agreement for
the sale of any of its Company Membership Interests to an unaffiliated third party and such third
party is not a bank, broker-dealer or any Affiliate thereof, then Parent may deliver a written
notice (a “Drag-Along Notice”) to Purchaser setting forth the proposed purchase price and
terms of the sale (including a copy of the proposed purchase agreement, if any) and the identity of
the transferee(s).



(b) Upon receipt of the Drag-Along Notice, Purchaser shall be required to sell and transfer
all or that portion of its Purchaser Membership Interests as set forth in the Drag-Along Notice
(which shall in no event be less than the percentage of Parent’s total Company Membership Interests
proposed to be sold by Parent in such sale) at a purchase price which is the greater of (x) the pro
rata value of the Purchaser Membership Interests based upon the valuation placed upon 100% of the
Company Membership Interests in the contemplated transaction and (y) the pro rata value of the
Purchaser Membership Interests based upon a $55,000,000 valuation of 100% of the Company Membership
Interests.



(c) Purchaser shall cooperate in consummating the sale described in the Drag-Along Notice,
including, without limitation, by becoming a party to the sale agreement and all other appropriate
related agreements, delivering, at the consummation of such sale, an assignment of its Purchaser
Membership Interests, free and clear of all liens and encumbrances, and taking any other necessary
or appropriate action in furtherance thereof, including the execution and delivery of any other
appropriate agreements, certificates, instruments and other documents.



(d) Notwithstanding any other provision contained in this Section 2.8, there shall be no
liability on the part of the Company or Parent in the event that the sale pursuant to this
Section 2.8 is not consummated for any reason whatsoever.



Section 2.9. Tag-Along Rights.



(a) Unless a Redemption Event shall have occurred or Parent shall have delivered a valid
Drag-Along Notice to Purchaser, if at any time, Parent proposes to sell, in one or more related
transactions, any portion of its Company Membership Interests, in an amount in the aggregate less
than 50% of the then outstanding Company Membership Interests, to an unaffiliated third party, and
such third party is not a bank, broker-dealer or any Affiliate thereof, such disposition shall not
be permitted unless Parent shall offer (the “Minority Offer”) by written notice (the
“Minority Sale Notice”) to Purchaser the right to elect to include, at the option of
Purchaser, in the sale to the third party, that portion of Purchaser’s Membership Interest
specified in this Section 2.9(a). The Minority Sale Notice shall specify that Purchaser shall have
the right to sell, pursuant to the Minority Offer, up to the same percentage of Purchaser’s
Membership Interests as the percentage of Company Membership Interests to be disposed of by Parent
then bears to the total number of Company Membership Interests then owned by Parent;
provided, that if the Minority Offer is for a maximum number of Company Membership
Interests and such number is less than the number that would be disposed of by application of the
foregoing, then the right to sell Company Membership Interests shall be allocated on a pro rata
basis among Parent and Purchaser in proportion to (i) the number of Company Membership Interests
offered to be sold by such Member, as compared with (ii) the aggregate number of Company Membership
Interests offered to be disposed of in the aggregate by the Members. The disposition by Purchaser
pursuant to this Section 2.9(a) shall be on the same terms and conditions and price as are received
by Parent and as stated in the Minority Notice.



(b) The Minority Notice shall describe the proposed transaction and shall include the sale
consideration and other material terms thereof and shall be accompanied by copies of the documents
pursuant to which such disposition is to be effected. At any time within 15 days after the
delivery of the Minority Notice, Purchaser may accept the offer included in the applicable notice
for up to such number of Purchaser Membership Interests determined in accordance with the
provisions of Section 2.9(a) by furnishing written notice of such acceptance to Parent.



(c) At the closing of the sale of Company Membership Interests of Parent and Purchaser to the
third party pursuant to the Minority Offer, Purchaser shall execute such documents as are to be
executed by all Members pursuant to such offer against payment to Purchaser of the total price for
the Purchaser Membership Interests and shall furnish such other evidence of the completion and time
of completion of the sale and the terms thereof as may be reasonably requested.



(d) If, within 15 days after the delivery of the Minority Notice, Purchaser fails to accept
the offer contained in the Minority Notice, Purchaser will be deemed to have waived any and all of
its rights with respect to the sale or other disposition of Company Membership Interests described
in such notice and Parent shall have 60 days in which to enter into an agreement to dispose of not
more than the amount described in such notice on terms not more favorable to Parent than were set
forth in the Minority Notice. If, at the end of 75 days following the delivery of the Minority
Notice, Parent has not completed the sale or other disposition of Company Membership Interests in
accordance with the terms of the third party’s offer, all the restrictions on disposition contained
in this Agreement with respect to Company Membership Interests owned by Parent shall again be in
effect.



(e) The provisions of this Section 2.9 shall be inoperative and of no effect if a Redemption
Event shall have occurred or a Drag Along Notice has been properly delivered by Parent to Purchaser
with respect to a disposition of Company Membership Interests as provided in Section 2.8 of this
Agreement.



ARTICLE III




REPRESENTATIONS AND WARRANTIES OF PARENT AND THE COMPANY




Parent and the Company hereby jointly and severally make the representations and warranties to
Purchaser set forth in this Article III. For purposes of this Article III, the term “knowledge,”
when used below with respect to Parent of the Company, shall mean the actual knowledge of each of
Parent’s or the Company’s executive officers and directors, as the case may be.



Section 3.1. Representations of Parent.



(a) Organization and Qualification of Parent. Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of the State of Maryland and has
all requisite corporate power and authority to own, license, use, lease and operate its assets and
properties and to carry on its business as it is now being conducted.



(b) Authority; Binding Effect of Agreement. Parent has all requisite corporate power
and authority to, execute and deliver this Agreement and the Operating Agreement and to perform its
obligations and consummate the transactions contemplated by this Agreement and the Operating
Agreement. Each of this Agreement and the Operating Agreement has been duly executed and delivered
by Parent and, assuming the due authorization, execution and delivery of this Agreement and the
Operating Agreement by Purchaser, constitutes a valid and legally binding obligation of Parent,
enforceable against Parent in accordance with its terms (subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors’ rights generally and to
general principles of equity, regardless of whether enforcement is sought in a proceeding in equity
or at law).



(c) No Conflicts. The execution and delivery by Parent of this Agreement and the
Operating Agreement and the performance of the transactions contemplated by this Agreement and the
Operating Agreement do not and will not (i) conflict with or result in a violation of any provision
of the organizational documents of Parent, (ii) to the knowledge of Parent,  except as set forth on
Section 3.1(c) of the Disclosure Schedule, result in a violation or breach of or constitute
a default (or an event which, with or without notice or lapse of time or both, would constitute a
default) under, or result in the termination, modification or cancellation of, or the loss of a
benefit under or accelerate the performance required by, or result in a right of termination,
modification, cancellation or acceleration under the terms, conditions or provisions of any
contract or other instrument of any kind to which Parent is now a party or by which any of its
assets or properties may be bound or affected, or (iii) violate any order, writ, injunction,
decree, statute, treaty, rule or regulation applicable to Parent, except with respect to clauses
(ii) and (iii) for such violations, breaches and defaults as would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect or for which Parent has
obtained a valid waiver; provided, however, that any such violation, breach or
default shall be deemed to be a Material Adverse Effect in the event that such violation, breach or
default entitles any person to take an action to invalidate the transactions contemplated by this
Agreement.



(d) Consents and Approvals. No declaration, filing or registration with, or notice
to, or authorization, consent, order or approval of, any Governmental Authority is required to be
obtained or made in connection with or as a result of the execution and delivery of this Agreement
and the Operating Agreement by Parent or the performance by Parent of the transactions contemplated
by this Agreement and the Operating Agreement, except for such consents, approvals, orders,
authorizations, registrations, declarations and filings as are listed on Section 3.1(d) of the
Disclosure Schedule, those required to be made under the U.S. federal securities laws and, for
those, the failure of which to obtain would not individually or in the aggregate reasonably be
expected to result in a Material Adverse Effect; provided, however, that any such
failure to obtain any required authorization, consent, order, or approval of any Governmental
Authority with respect to the transactions contemplated hereby which failure would entitle such
Governmental Authority to take any action seeking to invalidate such transactions shall be deemed
to be a Material Adverse Effect.



(e) Ownership of Purchased Membership Interests. Parent is the lawful record and
beneficial owner of the Purchased Membership Interests and owns such Purchased Membership Interests
free and clear of all Encumbrances whatsoever, except for any Encumbrances created by this
Agreement, the Operating Agreement, Purchaser and restrictions on transfer under federal and state
securities laws. Upon the assignment of the Purchased Membership Interests by Parent to Purchaser
in the manner contemplated under ARTICLE II, and the payment by Purchaser of the Purchase Price to
Parent, Purchaser will acquire the beneficial and legal title to the Purchased Membership
Interests, free and clear of all Encumbrances, except for any Encumbrances created by this
Agreement, the Operating Agreement, Purchaser or restrictions on transfer under federal and state
securities laws. Other than the Option, there are no outstanding options, warrants or other rights
of any kind to acquire from Parent or the Company any Company Membership Interests or securities
convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to
acquire from Parent or the Company any Company Membership Interests, nor is Parent or the Company
committed to issue any such option, warrant, right or security.



(f) Compliance with Securities Act. Parent’s Annual Report on Form 10-K for the
annual period ended December 31, 2005 and Parent’s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2006 (collectively, the “1934 Act Reports”) at the time they
were filed with the Securities and Exchange Commission (the “SEC”), complied, in all
material respects with the requirements of the Exchange Act and the rules and regulations of the
SEC thereunder (the “1934 Act Regulations”), and, at the time they were filed, did not
include an untrue statement of material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading.



(g) Financial Statements. Parent has made available to Purchaser its audited
consolidated balance sheet and statements of operations, stockholders’ equity, and cash flows as of
and for the fiscal year ended December 31, 2005 and its unaudited consolidated balance sheet and
statements of operations, stockholders’ equity, and cash flows as of and for the nine months ended
September 30, 2006 (collectively, the “Financial Statements”). Except for normal year-end
adjustments (which will not be material individually or in the aggregate) and the lack of footnotes
and other presentation items, the Financial Statements have been prepared in accordance with GAAP
on a consistent basis for the periods covered thereby and present fairly, in all material respects,
the consolidated financial condition of Parent as of such dates and the consolidated results of
operations of Parent for such period.



Section 3.2. Corporate Organization and Authority. The Company is a limited liability
company, duly organized, validly existing and in good standing under the laws of the State of
Delaware and has all necessary limited liability company power and authority to carry on its
business as now being conducted and to own, use and lease its assets. Except as otherwise exempt
from the relevant requirements, the Company and each of its Subsidiaries (i) either (A) is duly
qualified, licensed and/or admitted to do business, or (B) where necessary, as determined on a case
by case basis, enters into an appropriate arrangement with a Person who is duly qualified, licensed
or admitted to do business, and (ii) is in good standing in every jurisdiction in which such
qualification, licensing or admission is necessary because of the nature of the property owned,
leased or operated by it or the nature of the business conducted by it, except where the failure to
be so qualified, licensed or admitted to do business would not reasonably be expected to have a
Material Adverse Effect.



Section 3.3. Binding Effect of Agreement. The execution and delivery of this
Agreement and the performance of the transactions contemplated hereby have been approved by Parent
and no other proceedings on the part of the Company are necessary to authorize the execution and
delivery of this Agreement and the performance by the Company of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery of this Agreement by Purchaser, constitutes a valid and
legally binding obligation of the Company, enforceable against the Company in accordance with its
terms (subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally and to general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law).



Section 3.4. No Conflicts. The execution and delivery by the Company of this
Agreement and the performance of the transactions contemplated by this Agreement do not and will
not (i) except for the Company’s existing limited liability company agreement which will be amended
and restated by the Operating Agreement, conflict with or result in a violation of any provision of
the organizational documents of the Company or any of its Subsidiaries, (ii) result in a violation
or breach of or constitute a default (or an event which, with or without notice or lapse of time or
both, would constitute a default) under, or result in the termination, modification or cancellation
of, or the loss of a benefit under or accelerate the performance required by, or result in a right
of termination, modification, cancellation or acceleration under the terms, conditions or
provisions of any contract or other instrument of any kind to which the Company or any of its
Subsidiaries is now a party or by which any of their respective assets may be bound or affected or
(iii)  violate any order, writ, injunction, decree, statute, treaty, rule or regulation applicable
to the Company or any of its Subsidiaries, except with respect to clauses (ii) and (iii) for such
violations, breaches and defaults as would not individually or in the aggregate reasonably be
expected to result in a Material Adverse Effect or for which the Company has obtained a valid
waiver; provided, however, that any such violation, breach or default shall be
deemed to be a Material Adverse Effect in the event that such violation, breach or default entitles
any person to take an action to invalidate the transactions contemplated by this Agreement.



Section 3.5. Consents and Approvals. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Authority is required by or with
respect to the Company or any of its Subsidiaries in connection with the execution and delivery of
this Agreement or the consummation and performance of the transactions contemplated hereby, except
for such consents, approvals, orders, authorizations, registrations, declarations and filings as
are listed on Section 3.1(d) of the Disclosure Schedule, and those, the failure of which to
obtain would not individually or in the aggregate reasonably be expected to result in a Material
Adverse Effect; provided, however, that any such failure to obtain any required
authorization, consent, order, or approval of any Governmental Authority with respect to the
transactions contemplated hereby which failure would entitle such Governmental Authority to take
any action seeking to invalidate such transactions shall be deemed to be a Material Adverse Effect.



Section 3.6. Capitalization. The Company Membership Interests constitute all of the
issued and outstanding limited liability company interests of the Company as of the date hereof.
All of the Company Membership Interests have been validly issued. There are no outstanding
options, warrants or other rights of any kind to acquire from the Company any limited liability
company interests of the Company or securities convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to acquire, any such additional limited liability
company interests, nor is the Company committed to issue any such option, warrant, right or
security. Except for the Company Membership Interests, there are no other interests (including,
without limitation, equity, profits and all other participation rights) issued by the Company or
any of its Subsidiaries providing any Person with any rights to ownership or participation in the
equity, profits or other results of operations of the Company. Upon reclassification pursuant to
the terms of this Agreement and the Operating Agreement, the Purchased Membership Interests and the
Option Membership Interests will be duly and validly issued and fully paid limited liability
company interests of the Company, free and clear of all Encumbrances (other than Encumbrances
arising under this Agreement, the Securities Act or any applicable state law). No shareholder of
the Company or any other person is entitled to any preemptive rights with respect to the purchase
or sale of any securities by the Company.



Section 3.7. Title to Assets. To the knowledge of the Company, the Company and its
Subsidiaries have good and marketable title to, or a valid leasehold interest in, the properties
and assets used by them or located on their premises, free and clear of all Encumbrances, except
for properties and assets disposed of in the Ordinary Course of Business and except for any
Encumbrances the existence of which do not interfere with the intended use of the property and the
assets by the Company and any of its Subsidiaries or otherwise would not individually or in the
aggregate have or reasonably be expected to have a Material Adverse Effect.



Section 3.8. Financial Statements. The Company has made available to Purchaser the
unaudited consolidated balance sheet and statements of income and cash flows of the Company and its
Subsidiaries as of and for the nine month period ended September 30, 2006 (the “Month-End
Financials”). Except for normal year-end adjustments (which will not be material individually
or in the aggregate), the lack of intercompany eliminations, footnotes and other presentation
items, the Month-End Financials have been prepared in accordance with GAAP on a consistent basis,
and present fairly, in all material respects, the consolidated financial condition of the Company
as of such date and the consolidated results of operations of the Company for such period.



Section 3.9. Events Subsequent to Most Recent Fiscal Month End. Except as set forth
on Section 3.9 of the Disclosure Schedule, since September 30, 2006, there has not been any
Material Adverse Change.



Section 3.10. Undisclosed Liabilities. Neither the Company nor any of its
Subsidiaries have any material Liability, except for (i) Liabilities set forth in the most recent
balance sheet included in the Financial Statement or the Month-End Financials; (ii) Liabilities
that have arisen after September 30, 2006 in the Ordinary Course of Business (none of which was
caused by a breach of contract, breach of warranty, tort or other infringement); or (iii)
Liabilities of a nature not required by GAAP to be reflected or recorded on the Financial
Statements or the Month-End Financials.



Section 3.11. Legal Compliance. To the knowledge of the Company, no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or
commenced against the Company or any of its Subsidiaries alleging, and the Company otherwise does
not have knowledge of, any failure to comply with any laws applicable to the Company or any of its
Subsidiaries (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges thereunder and including the Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1
et seq and Environmental Laws) of federal, state, local, and foreign governments (and all agencies
thereof), except where the action, suit, proceeding, hearing, investigation, charge, complaint,
claim, demand, or notice relates to a failure to so comply which would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect.



Section 3.12. Tax Matters. The Company and its Subsidiaries have filed all necessary
or appropriate federal, state, local and foreign Tax returns and reports and all Taxes, fees,
assessments and governmental charges of any nature shown by such returns to be due and payable have
been paid, except for those amounts being contested in good faith and for which appropriate amounts
have been reserved in accordance with generally accepted accounting principles and except where the
failure to file such returns and reports or pay such amounts would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect. There is no Tax
deficiency which has been asserted against the Company or any of its Subsidiaries and, to the
knowledge of the Company, no unassessed Tax deficiency or other claim for Taxes has been proposed
or threatened against the Company or any of its Subsidiaries. Except as set forth on Section
3.12 of the Disclosure Schedule, the Company and its Subsidiaries have not been, and are not
now being, audited by any federal, state, local or foreign Tax authorities. The Company and its
Subsidiaries have made all material required deposits for Taxes applicable to the current tax year.
All Tax returns and reports of the Company and its Subsidiaries were prepared in all material
respects in accordance with the relevant rules and regulations of each Taxing authority having
jurisdiction over the Company or any of its Subsidiaries. The Company is currently treated (and
shall at all times remain treated) as a taxable REIT subsidiary of Parent within the meaning of
Code Section 856(l).



Section 3.13. Contracts. All of the agreements to which the Company or its
Subsidiaries is a party and which are material to the financial condition, operation or conduct of
its business are legal, valid and binding obligations of the Company or any of its Subsidiaries
and, to the best knowledge of the Company, of each of the other parties thereto, enforceable
against the Company or the applicable Subsidiary in accordance with their respective terms. To the
knowledge of the Company, all such agreements are in full force and effect in all material respects
and the Company and such Subsidiary, and, to the knowledge of the Company, each other party
thereto, is not in material default under any of such agreements except for defaults with respect
to which the Company has received a valid waiver.



Section 3.14. Insurance. Parent, the Company and its Subsidiaries carry, or are
covered by, insurance from insurers of recognized financial responsibility in such amounts and
covering such risks as is reasonably believed by the Company to be adequate for the conduct of
their respective businesses in all material respects and the value of their respective properties.
To the knowledge of the Company, all material policies of insurance of Parent, the Company and its
Subsidiaries or their respective businesses, assets, employees, officers and directors are in full
force and effect in all material respects; and none of Parent, the Company or any of its
Subsidiaries has received any written notice of cancellation or non-renewal of any such policy.



Section 3.15. Litigation. There is no action, suit or proceeding before or by any
Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its Subsidiaries, except for
such actions, suits or proceedings that, if adversely determined, would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect; and the aggregate of all
pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a
party or of which any of their respective properties or assets is subject, including ordinary
routine litigation incidental to the business, are not reasonably expected, individually or in the
aggregate, to result in a Material Adverse Effect.



Section 3.16. ERISA. To the knowledge of the Company, each of the Company and its
Subsidiaries has fulfilled, in all material respects, its obligations, if any, under minimum
funding standards of ERISA, and the regulations promulgated thereunder with respect to each “plan”
(as defined in Section 3(3) of ERISA and the regulations thereunder), which is maintained by the
Company or its Subsidiaries for its employees, and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and the regulations thereunder. The
Company is regarded as an “Operating Company” within the meaning of 29 CFR 2510.101-3.



Section 3.17. Subsidiaries. Each Subsidiary of the Company is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization and has the
requisite power and authority to own, lease and operate its assets and properties and to carry on
its business as it is now being conducted. Each of such Subsidiaries is qualified to do business,
and is in good standing, in each jurisdiction in which the properties owned, leased or operated by
it or the nature of the business conducted by it makes such qualification necessary, except where
the absence thereof would not individually or in the aggregate reasonably be expected to result in
a Material Adverse Effect. All of the outstanding shares of capital stock or other ownership
interests of each Subsidiary owned by the Company are validly issued, fully paid and nonassessable,
and such shares or other interests are owned directly or indirectly by the Company free and clear
of any Encumbrances. Except as set forth on Section 3.17 of the Disclosure Schedule, there
are no outstanding subscriptions, options, warrants, rights, calls, understandings, restrictions or
arrangements relating to the issuance, sale, voting, transfer, ownership or other rights affecting
any shares of capital stock of any Subsidiary of the Company, including any right of conversion or
exchange under any outstanding security, instrument or agreement.



Section 3.18. Possession of Licenses and Permits. Each of the Company and the
Subsidiaries possesses such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate governmental entities
necessary to conduct the business now operated by it, except where the failure to possess such
Governmental Licenses would not, singularly or in the aggregate, have a Material Adverse Effect;
each of the Company and the Subsidiaries is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate
have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, individually or in the aggregate,
have a Material Adverse Effect; and neither the Company nor any Subsidiary has received any notice
of proceedings relating to the revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, in the reasonable judgment of the Company, is likely to result in
a Material Adverse Effect.



Section 3.19. Independent Auditors. Ernst & Young LLP is Parent’s independent
registered public accounting firm within the meaning of the 1934 Act and the 1934 Act Regulations.



Section 3.20. Not an Investment Company. To the knowledge of the Company, neither the
Company, nor any of its Subsidiaries is, and immediately following consummation of the transactions
contemplated hereby and the application of the net proceeds therefrom, neither the Company nor any
of its Subsidiaries will be, an “investment company” or an entity “controlled” by an “investment
company”, in each case within the meaning of Section 3(a) of the Investment Company Act of 1940, as
amended (the “1940 Act”).



Section 3.21. No General Solicitation. None of the Company or any of its Affiliates
(as such term is defined in Rule 501(b) under the 1933 Act, “Affiliates”) or any person
acting on its behalf has engaged, in connection with the sale of the Purchaser Membership
Interests, in any form of general solicitation or general advertising within the meaning of Rule
502(c) under the 1933 Act.



Section 3.22. No Registration. Assuming the accuracy of the representations and
warranties of Purchaser made in Article III of this Agreement, it is not necessary in connection
with the offer, sale and delivery of the Purchased Membership Interests to register the Purchased
Membership Interests under the 1933 Act.



Section 3.23. No Integration. Within the period of the preceding six months prior to
the date hereof, neither the Company nor any other person acting on behalf of the Company has
offered or sold to any person any securities of the same or a similar class as the Purchased
Membership Interests.



Section 3.24. No Other Representations. Except as expressly provided above, or
elsewhere in this Agreement, Parent does not make to Purchaser, and Parent hereby expressly
disclaims, any representation or warranty of any kind or nature, written or oral, statutory,
express or implied, including, without limitation, with respect to Parent, its Subsidiaries or any
of their respective assets. Without limiting the generality of the foregoing, except as expressly
provided above or elsewhere in this Agreement, Parent does not make any representation or warranty
to Purchaser of any kind or nature, written or oral, statutory, express or implied, as to (i) the
condition, value or quality of Parent’s or the Company’s assets, (ii) the prospects (financial and
otherwise), risks and other incidents of Parent’s or the Company’s assets, (iii) the collectibility
of any debt or interest in any debt included in Parent’s or the Company’s assets or (iv) any other
matters of any nature whatsoever arising out of or relating to this Agreement and the transactions
contemplated hereby.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF PURCHASER




Purchaser hereby represents and warrants to Parent that:



Section 4.1. Organization and Qualification. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of New York.
Purchaser has all requisite corporate power and authority to own, license, use or lease and operate
its assets and properties and to carry on its business as it is now conducted.



Section 4.2. Authority; Non-Contravention; Approvals.



(a) Purchaser has all requisite corporate power and authority to execute and deliver this
Agreement and the Operating Agreement and to perform its obligations and consummate the
transactions contemplated by this Agreement and the Operating Agreement. The execution and
delivery of this Agreement and the Operating Agreement and the performance of the transactions
contemplated hereby and thereby have been duly authorized and no other corporate proceedings on the
part of Purchaser are necessary to authorize the execution and delivery of this Agreement or the
Operating Agreement and the performance by Purchaser of the transactions contemplated hereby and
thereby. This Agreement and the Operating Agreement has been duly executed and delivered by
Purchaser and, assuming the due authorization, execution and delivery of this Agreement and the
Operating Agreement by the other parties thereto, constitutes valid and binding obligations of
Purchaser enforceable against Purchaser in accordance with their respective terms (subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’
rights generally and to general principles of equity, regardless of whether enforcement is sought
in a proceeding in equity or at law).



(b) The execution and delivery by Purchaser of this Agreement and the Operating Agreement and
the performance of the transactions contemplated hereby and thereby do not and will not
(i) conflict with or result in a breach of any provisions of the certificate of incorporation and
bylaws of Purchaser, (ii) result in a violation or breach of or constitute a default (or an event
which, with or without notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or the loss of a benefit under or accelerate the performance required
by, or result in a right of termination, modification, cancellation or acceleration under, the
terms, conditions or provisions of any contract or other instrument of any kind to which Purchaser
is now a party or by which Purchaser or any of its properties or assets may be bound or affected,
or (iii) violate any order, writ, injunction, decree, statute, treaty, rule or regulation
applicable to Purchaser.



(c) No declaration, filing or registration with, or notice to, or authorization, consent,
order or approval of, any Governmental Authority is required to be obtained or made in connection
with or as a result of the execution and delivery of this Agreement and the Operating Agreement by
Purchaser or the performance by Purchaser of the transactions contemplated by this Agreement and
the Operating Agreement.



Section 4.3. Restricted Securities. Purchaser understands that the Purchaser
Membership Interests have not been registered under the Securities Act or the securities or blue
sky laws of any State of the United States or any other jurisdiction. Purchaser also understands
that the Purchaser Membership Interests are being offered and sold pursuant to an exemption from
registration contained in the Securities Act and any such State or other jurisdictions’ securities
or blue sky laws based in part upon Purchaser’s representations contained in this Agreement.



Section 4.4. Subscriber Bears Economic Risk. Purchaser has such knowledge and
experience in financial and business matters so that it is capable of evaluating the merits and
risks of its investment in the Company and has the capacity to protect its own interests.
Purchaser is able to bear the economic risk of this investment indefinitely.



Section 4.5. Acquisition For Own Account. Purchaser is acquiring the Purchaser
Membership Interests for its own account for investment only, and not with a view towards a
distribution thereof in violation of the Securities Act; provided, that this representation
and warranty shall not limit Purchaser’s right to sell the Purchaser Membership Interests in
compliance with applicable securities laws and the Operating Agreement.



Section 4.6. Accredited Investor. Purchaser is an accredited investor within the
meaning of Regulation D under the Securities Act.



Section 4.7. Information.



(a) Purchaser (i) has been provided with such information regarding Parent and its
Subsidiaries that it believes necessary for purposes of making an informed decision to enter into
this Agreement and acquire the Purchaser Membership Interests, (ii) has received and carefully
reviewed this Agreement, (iii) has been afforded the opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of Parent and the Company concerning
the terms and conditions of the acquisition, and (iv) has received any additional information which
Purchaser or its advisors or agents has requested.



(b) Purchaser is familiar with and understands the terms of its acquisition of the Purchaser
Membership Interests pursuant to this Agreement, including the rights to which Purchaser is
entitled under this Agreement and the Operating Agreement. In evaluating the suitability of an
investment in the Company, Purchaser has not relied upon any representation or other information
(whether oral or written) from Parent, or any agent, employee or Affiliate of Parent other than as
set forth in this Agreement or the Loan Documents or resulting from Purchaser’s own independent
investigation. Purchaser understands and acknowledges that nothing in this Agreement or any other
materials provided to Purchaser in connection with the purchase of the Purchaser Membership
Interests constitutes investment, tax or legal advice. To the extent deemed necessary or advisable
by Purchaser in its sole discretion, Purchaser has retained, at its sole expense, and relied upon
appropriate professional advice regarding the investment, tax and legal merits and consequences of
this Agreement and its purchase of the Purchaser Membership Interests hereunder.



Section 4.8. No Public Market. Purchaser understands that no public market now exists
for any of the Company Membership Interests, and that Parent has made no assurances that a public
market will ever exist for the Company Membership Interests.



Section 4.9. Legends. Purchaser understands that certificates representing the
Purchased Membership Interests and the Option Membership Interests will bear legends required under
applicable federal and state securities laws.



ARTICLE V




COVENANTS




Section 5.1. Transfer Taxes. All transfer, registration, stamp, documentary, sales,
use and similar Taxes, any penalties, interest and additions to Tax, and fees incurred in
connection with the purchase of the Purchased Membership Interests, shall be the responsibility of
and be timely paid by Purchaser.



Section 5.2. Public Announcements. Any press release with respect to the execution of
this Agreement or the transactions contemplated hereby shall be a joint press release mutually
agreed to by Parent and Purchaser. Neither Parent nor Purchaser nor any of their respective
Affiliates shall issue or cause the dissemination of any press release or other public
announcements or statements with respect to this Agreement or the transactions contemplated hereby
without the consent of the other party, which consent will not be unreasonably withheld, except as
may be required by law or by any listing agreement with a national securities exchange or trading
market, in which case the disclosing party shall provide the other party with a reasonable
opportunity to review and comment on any such release prior to its dissemination.



Section 5.3. Further Assurances; Post-Closing Cooperation. From time to time after
the Closing, without additional consideration, each of the parties hereto will (or, if appropriate,
cause their Affiliates to) execute and deliver such further instruments and take such other action
as may reasonably be requested by the other parties to make effective the transactions contemplated
by this Agreement and the Operating Agreement.



Section 5.4. Notification. In the event that any party becomes aware of any matter
which might, directly or indirectly, give rise to an indemnification claim by the other party
pursuant to ARTICLE VII, such party shall promptly notify the other party in writing.



Section 5.5. Reporting Requirements. Parent, the Company and Purchaser acknowledge
that the Company is required pursuant to the Loan Documents to provide Purchaser with certain
financial and operating data with respect to the monthly, quarterly and annual performance of the
Company and its Subsidiaries. If the Loan Documents are terminated or Purchaser and its Affiliates
otherwise cease to be entitled to receive such financial and operating data, the Company shall, for
so long as Purchaser holds the Purchased Membership Interests acquired pursuant this Agreement,
provide Purchaser with substantially the same financial and operating information Purchaser was
entitled to receive pursuant to the Loan Documents; provided, that if the Company is
providing similar financial and operating data to other lenders or financing sources, the Company
may satisfy its obligation pursuant to this Section 5.5 by furnishing Purchaser with copies of such
financial and operating data in the same format as provided to the other lenders and financing
sources.



Section 5.6. Tax Status. For so long as Purchaser holds any Purchased Membership
Interests or Option Membership Interests, the Company shall not change its election to be treated
as a corporation for purposes of the Code.



Section 5.7. Liquidation Provisions. For so long as Purchaser holds any Purchased
Membership Interests or Option Membership Interests, the Company shall not, and Parent shall not
take any action to, make any material modifications to the Operating Agreement with respect to the
liquidation provisions thereof or any provisions which may, in any way, affect Purchaser’s right to
receive funds in connection with a liquidation or winding up of the Company.



Section 5.8. Intercompany Transactions. For so long as Purchaser holds any Purchased
Membership Interests or Option Membership Interests, the Company shall not, and Parent shall not
take any action to, transfer any material portion of the Company’s operations to an Affiliate.



ARTICLE VI




CONDITIONS TO OBLIGATIONS OF PARTIES




Section 6.1. Conditions Precedent to Each Party’s Obligations at the Closings. The
respective obligations of each party to effect the Closing or the Option Closing, as applicable,
are subject to the fulfillment on or prior to the Closing or the Option Closing, as applicable, of
the following conditions, which conditions may be waived, in whole or in part, at the option of the
each party to the extent permitted by law:



(a) Consents and Approvals. All necessary consents and approvals of any Governmental
Authority or any other Person required for the consummation of the transactions contemplated by
this Agreement shall have been obtained; and



(b) No Orders. No statute, rule, regulation, order, decree or injunction shall have
been enacted, entered, promulgated or enforced by a Governmental Authority that prohibits the
consummation of the transactions contemplated by this Agreement shall be in effect.



Section 6.2. Conditions Precedent to the Obligations of Parent at Closing. Parent’s
obligation to complete the sale of the Purchased Membership Interests at the Closing is subject to
the fulfillment on or prior to the Closing of the following conditions, which conditions may be
waived, in whole or in part, at the option of Parent to the extent permitted by law:



(a) Representations and Warranties Correct. The representations and warranties made
by Purchaser in Article IV hereof shall be true and correct in all material respects when made, and
shall be true and correct in all material respects on and as of the Closing Date, except those
representations and warranties of Purchaser that speak as of a certain date or time, provided such
representations and warranties shall have been true and correct in all material respects as of such
date;



(b) Covenants. All covenants, agreements and conditions contained in this Agreement
to be performed by Purchaser on or prior to the Closing Date shall have been performed or complied
with in all material respects; and



(c) Closing Deliveries by Purchaser. At the Closing, Purchaser will:




(i) pay the Purchase Price by wire transfer of immediately available funds to
such account as Parent may direct by written notice to Purchaser; and




(ii) deliver a duly executed counterpart of the Operating Agreement.



Section 6.3. Conditions to the Obligations of Purchaser at Closing. Purchaser’s
obligation to complete the acquisition of the Purchased Membership Interests at the Closing is
subject to the fulfillment on or prior to the Closing of the following conditions, which conditions
may be waived, in whole or in part, at the option of Purchaser to the extent permitted by law:



(a) Representations and Warranties Correct. The representations and warranties made
by Parent in Article III hereof shall be true and correct in all material respects when made, and
shall be true and correct in all material respects on and as of the Closing Date, except those
representations and warranties of Parent that speak as of a certain date or time, provided such
representations and warranties shall have been true and correct in all material respects as of such
date;



(b) Covenants. All covenants, agreements and conditions contained in this Agreement
to be performed by Parent or the Company on or prior to the Closing Date shall have been performed
or complied with in all material respects; and



(c) Closing Deliveries. At the Closing:




(i) Purchaser shall have received a duly executed counterpart of the Operating
Agreement from Parent;




(ii) Purchaser shall have received from counsel to Parent an opinion in form
and substance as set forth in Exhibit B attached hereto, addressed to
Purchaser and dated as of the Closing Date;




(iii) Purchaser shall have received from each of Parent and the Company a
certificate of the secretary or an assistant secretary, dated the Closing Date, in
form and substance reasonably satisfactory to Purchaser, as to (a) true and correct
copies of the certificate of incorporation or certificate of formation, as the case
may be, (b) the bylaws (or other governing documents) of such party, (c) the
resolutions of the board of directors (or other authorizing body or a duly
authorized committee thereof) of such party authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby, and (d)
incumbency and signatures of the officers of such party executing this Agreement or
any other agreement contemplated by this Agreement; and




(iv) Parent shall provide Purchaser with an executed certification, in the form
and manner set forth in U.S. Treasury Regulation Section 1.1445-2(b)(2), of Parent’s
non-foreign status.



(d) Post-Closing Deliveries. Within fifteen (15) Business Days of Closing, the
Company shall have delivered to Purchaser:




(i) A certificate representing the Purchased Membership Interests acquired from
Parent pursuant to this Agreement; and




(ii) A counterpart of the Option, duly executed by Parent.



Section 6.4. Conditions Precedent to the Obligations of Parent at Option Closing.
Parent’s obligation to complete the sale of the Option Membership Interests at the Option Closing
is subject to the fulfillment on or prior to the Option Closing of the following conditions, which
conditions may be waived, in whole or in part, at the option of Parent to the extent permitted by
law:



(a) Representations and Warranties Correct. The representations and warranties made
by Purchaser in Article IV hereof shall be true and correct in all material respects when made, and
shall be true and correct in all material respects on and as of the Option Closing Date, except
those representations and warranties of Purchaser that speak as of a certain date or time, provided
such representations and warranties shall have been true and correct in all material respects as of
such date;



(b) Covenants. All covenants, agreements and conditions contained in this Agreement
to be performed by Purchaser on or prior to the Option Closing Date shall have been performed or
complied with in all material respects; and



(c) Closing Deliveries by Purchaser. At the Option Closing, Purchaser will pay the
Option Purchase Price by wire transfer of immediately available funds to such account as Parent may
direct by written notice to Purchaser.



Section 6.5. Conditions to the Obligations of Purchaser at Option Closing.
Purchaser’s obligation to complete the acquisition of the Option Membership Interests at the Option
Closing is subject to the fulfillment on or prior to the Option Closing of the following
conditions, which conditions may be waived, in whole or in part, at the option of Purchaser to the
extent permitted by law:



(a) Representations and Warranties Correct. The representations and warranties made
by Parent in Article III hereof shall be true and correct in all material respects when made, and
shall be true and correct in all material respects on and as of the Option Closing Date, except
those representations and warranties of Parent that speak as of a certain date or time, provided
such representations and warranties shall have been true and correct in all material respects as of
such date;



(b) Covenants. All covenants, agreements and conditions contained in this Agreement
to be performed by Parent or the Company on or prior to the Option Closing Date shall have been
performed or complied with in all material respects.



(c) Closing Deliveries.




(i) Parent shall have delivered to Purchaser a certificate to the effect that
each of the conditions specified above in Section 6.5(a) and (b) is satisfied in all
respects;




(ii) Purchaser shall have received from counsel to Parent an opinion in form
and substance as set forth in Exhibit B attached hereto, addressed to
Purchaser and dated as of the Option Closing Date;




(iii) Purchaser shall have received from each of Parent and the Company a
certificate of the secretary or an assistant secretary, dated the Option Closing
Date, in form and substance reasonably satisfactory to Purchaser, as to (a) true and
correct copies of the certificate of incorporation or certificate of formation, as
the case may be, (b) the bylaws (or other governing documents) of such party, (c)
the resolutions of the board of directors (or other authorizing body or a duly
authorized committee thereof) of such party authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby, and (d)
incumbency and signatures of the officers of such party executing this Agreement or
any other agreement contemplated by this Agreement; and




(iv) Purchaser shall have received a certificate from Parent or the Company
representing the Option Membership Interests.



ARTICLE VII




DISPUTE RESOLUTION




Section 7.1. Survival of Representations and Warranties.



(a) The representations and warranties of Parent and Purchaser contained in this Agreement
will survive the Closing and the Option Closing. Except as otherwise expressly provided in this
Agreement, each covenant hereunder to be performed after the Closing shall survive until fully
performed.



(b) No party’s rights hereunder (including rights under this ARTICLE VII) shall be affected by
any investigation conducted by or any knowledge acquired (or capable of being acquired) by such
party at any time, whether before or after the execution or delivery of this Agreement.



Section 7.2. Alternative Dispute Resolution.



(a) Neither party under this Agreement shall commence any action in any court or other forum
with regard to an alleged breach of any provision of this Agreement, whether in law or in equity,
including, but not limited to, arbitration or litigation, unless and until such party has made a
good faith determination that the cumulative damages with regard to all claims (whether or not
previously asserted) are equal to or exceed $100,000 exclusive of interest; provided,
however, that in the event that a claim arises (the “Claim”), the damages with
regard to which do not equal or exceed $100,000 exclusive of interest, the party having such Claim
shall give written notice of the existence of the Claim to the other party hereto, upon which all
applicable statutes of limitations and all similar statutes shall be tolled indefinitely. No party
hereto may raise a defense of laches to any Claim regarding which written notice was sent under
this Agreement.



(b) In connection with Claims for which damages are determined in good faith by the claiming
party to be between $100,000 and $250,000, the party having such Claim shall give written notice to
the other party hereto and thereafter the matter shall be resolved as follows:




(i) The parties shall endeavor to resolve the dispute by proceeding at the
instance of either to non-binding mediation conducted under the Commercial Mediation
Rules of the American Arbitration Association or under such other rules as the
parties may promptly agree to employ.




(ii) If the dispute has not been resolved pursuant to the aforesaid mediation
procedure within sixty (60) days of commencement of such procedure (which period may
be extended by mutual agreement), or if either party does not participate in good
faith in mediation, the parties shall submit such dispute to arbitration. Any
arbitration required under this Section 7.2 shall be conducted in accordance with
the rules of the American Arbitration Association then in effect in the City of New
York, County of New York with respect to expedited arbitrations and providing for at
least three (3) arbitrators, which arbitrators shall be individuals skilled in the
legal and business aspects of the subject matter of this Agreement and recommended
by the American Arbitration Association. The parties mutually promise and agree
that after any party has filed a notice of intent to arbitrate any dispute under
this Agreement and before the hearing thereof, they shall make discovery and
disclosure of all matters relevant to the subject matter of such dispute, to the
extent and in the manner provided by the Federal Rules of Civil Procedure. Any
questions that may arise with respect to the fulfillment of or the failure to
fulfill this obligation shall be referred to the arbitration panel for its
determination, which shall be final and conclusive.




(iii) The determination of the arbitration panel shall be binding and
conclusive on the parties. Each party shall bear the cost of one arbitrator and
they shall split the cost of the third arbitrator, provided that if the
arbitrator believes that any decision taken by a party is frivolous, the arbitrator
may award arbitrator’s fees to the prevailing party. Each party shall pay its own
attorney’s fees.




(iv) Judgment upon the award rendered may be entered in any court having
jurisdiction or application may be made to such court for a judicial acceptance of
the award and an order of enforcement, as the case may be.



Any party under this Agreement may commence an action, whether in law or in equity (consistent with
Sections 8.8 and 8.10 of this Agreement), for a Claim or Claims with regard to which the alleged
damages, individually or in the aggregate, exceed $250,000 as determined in good faith by the
claiming party. Each party to this Agreement acknowledges and agrees that bringing an action as
set forth above, either as an arbitration and/or in a court, (together with any supplemental and/or
appellate proceeding) for breach of contract (or any equitable remedy related thereto) with respect
to breaches of the representations and warranties, or violations of the covenants and agreements,
contained in this Agreement shall be its sole remedy against the other party(ies) with respect to
the transactions contemplated by this Agreement, absent fraud.



(c) Notwithstanding any provision of this Agreement to the contrary, no party shall be liable
for any consequential damages, including loss of revenue, income or profits, loss in value of
assets or securities, punitive, special, treble, remote, special or indirect damages, or loss of
business reputation or opportunity relating to the breach of this Agreement, including for any
claim based upon any multiplier of such party’s earnings before interest, Tax, depreciation or
amortization, or any similar valuation metric.



(d) The parties shall treat any payments with respect to Losses arising from a breach or
violation of the representations and warranties contained in this Agreement made pursuant to this
Article VII as an adjustment to the Purchase Price for all U.S. federal, state, local and foreign
Tax purposes, except as otherwise required by applicable law.



ARTICLE VIII




MISCELLANEOUS




Section 8.1. Notices. All notices, requests and other communications under this
Agreement must be in writing and will be deemed to have been duly given upon receipt by the parties
at the following addresses or facsimiles (or at such other address or facsimile for a party as
shall be specified by notice):



If to Purchaser:




Citigroup Global Markets Realty Corp.


390 Greenwich Street


New York, New York 10013


Attention: Bobbie Theivakumaran


Facsimile: (212) 723-8604




With a copy to:


Attention: General Counsel — Myongsu Kong


Facsimile.: (212) 801-4007



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




Thacher Proffitt & Wood llp


Two World Financial Center


New York, New York 10281


Attention:  Robert C. Azarow


Facsimile: (212) 912-7751



If to Parent or the Company:




Opteum Inc.


3305 Flamingo Drive


Vero Beach, Florida 32963


Attention: General Counsel


Facsimile: (772) 234-3355



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




	 	 	 	Clifford Chance US LLP






	 	31	 	West 52nd Street






	 	 	 	New York, New York 10019






	 	 	 	Attention: Robert E. King, Jr.






	 	 	 	Facsimile: (212) 878-8375





Section 8.2. Entire Agreement. This Agreement, the Operating Agreement and the
exhibits and schedules hereto and thereto supersede all prior and contemporaneous discussions and
agreements, both written and oral, among the parties with respect to the subject matter of this
Agreement and constitute the sole and entire agreement among the parties to this Agreement with
respect to the subject matter of this Agreement.



Section 8.3. Expenses. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated by this Agreement are consummated, each party will pay
its own costs and expenses incurred in connection with the negotiation, execution and closing of
this Agreement and the Operating Agreement and the transactions contemplated by this Agreement and
the Operating Agreement.



Section 8.4. Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the party waiving such
term or condition. No waiver by any party of any term or condition of this Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under this Agreement or
by law or otherwise afforded, will be cumulative and not alternative.



Section 8.5. Amendment. This Agreement may be amended, supplemented or modified only
by a written instrument duly executed by or on behalf of each party to this Agreement.



Section 8.6. No Third-Party Beneficiary. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and their respective heirs, personal
representatives, successors or permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person other than any Person entitled to
indemnity under ARTICLE VII.



Section 8.7. Assignment; Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors and permitted
assigns. No party may assign either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other parties hereto; provided,
however, that Purchaser may (i) assign any or all of its rights and interests hereunder to
one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases Purchaser nonetheless shall remain responsible
for the performance of all of its obligations hereunder).



Section 8.8. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.  EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK OR ANY COURT OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF
NEW YORK IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH THIS AGREEMENT AND
THE OPERATING AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND AGREES THAT ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT ONLY IN SUCH COURT (AND WAIVES ANY OBJECTION BASED
ON FORUM NON CONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN); PROVIDED,
HOWEVER, THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS
SECTION 8.8 AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE JURISDICTION OF SAID COURTS
OR IN THE STATE OF NEW YORK OTHER THAN FOR SUCH PURPOSE. Any and all process may be served in any
action, suit or proceeding arising in connection with this Agreement or the Operating Agreement by
complying with the provisions of Section 8.1. Such service of process shall have the same effect
as if the party being served were a resident in the State of New York and had been lawfully served
with such process in such jurisdiction. The parties hereby waive all claims of error by reason of
such service. Nothing herein shall affect the right of any party to service process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed against the other in
any other jurisdiction to enforce judgments or rulings of the aforementioned courts.



Section 8.9. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely affected thereby,
(a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (d) in
lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a
part of this Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.



Section 8.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF
SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.



Section 8.11. Counterparts. This Agreement may be executed in any number of
counterparts, including by facsimile signature thereof, all of which will constitute one and the
same instrument.



Section 8.12. Disclosure Schedule. Disclosures included in any section of the
Disclosure Schedule shall be considered to be made for purposes of the section of this Agreement to
which they apply except to the extent that the relevance of any such disclosure to any other
section of this Agreement is reasonably apparent on the face of such disclosure contained in the
Disclosure Schedules.



Section 8.13. Interpretation. The parties have participated jointly in negotiating
and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.



Signatures begin on the next page






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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 
	OPTEUM INC.

By:

	 	

/s/ Jeffrey J. Zimmer
	
 
	 	 







	 	 	Name: Jeffrey J. Zimmer

Title: Chairman, President and Chief Executive

Officer





	 	 	 
	OPTEUM FINANCIAL SERVICES, LLC

	 
	 	 
	By:

By:

	 	OPTEUM INC., its sole member

/s/ Jeffrey J. Zimmer
	
 
	 	 







	 	 	Name: Jeffrey J. Zimmer

Title: Chairman, President and Chief Executive

Officer





	 	 	 
	CITIGROUP GLOBAL MARKETS REALTY CORP.

	 
	 	 
	By:

	 	/s/ Joel Katz
	
 
	 	 







	 	 	Name: Joel Katz

Title: Authorized Agent





3




EXHIBIT A




FORM OF OPERATING AGREEMENT






4






EXHIBIT B




Form of Opinion of Counsel





5