tiaarea_xformofxnotepurc






BUSINESS.29029164.3     Exhibit (10)(C)                        TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,  ON BEHALF OF THE REAL ESTATE ACCOUNT         $300,000,000 3.24% Series A Senior Notes due June 10, 2029  $200,000,000 3.35% Series B Senior Notes due June 10, 2032        ____________________________________  NOTE PURCHASE AGREEMENT  _____________________________________      Dated June 10, 2022    





 






BUSINESS.29029164.3     TABLE OF CONTENTS    Page     -i-     SECTION 1. AUTHORIZATION OF NOTES; LIMITED RECOURSE ................................ 1  SECTION 2. SALE AND PURCHASE OF NOTES. ............................................................... 2  SECTION 3. CLOSINGS. ......................................................................................................... 2  SECTION 4. CONDITIONS TO CLOSING. ........................................................................... 2  Section 4.1. Representations and Warranties ........................................................................ 2  Section 4.2. Performance; No Default .................................................................................... 2  Section 4.3. Compliance Certificates ...................................................................................... 3  Section 4.4. Opinions of Counsel ............................................................................................. 3  Section 4.5. Purchase Permitted By Applicable Law, Etc .................................................... 3  Section 4.6. Sale of Other Notes .............................................................................................. 3  Section 4.7. Payment of Special Counsel Fees........................................................................ 3  Section 4.8. Private Placement Number ................................................................................. 4  Section 4.9. Changes in Corporate Structure ........................................................................ 4  Section 4.10. Funding Instructions ........................................................................................... 4  Section 4.11. Offeree Letter. ...................................................................................................... 4  Section 4.12. Amendment to Bank Credit Agreement. ........................................................... 4  Section 4.13. Proceedings and Documents. .............................................................................. 4  SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ............... 5  Section 5.1. Organization; Power and Authority .................................................................. 5  Section 5.2. Authorization, Etc ................................................................................................ 5  Section 5.3. Disclosure .............................................................................................................. 5  Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates................. 5  Section 5.5. Financial Statements; Material Liabilities ........................................................ 6  Section 5.6. Compliance with Laws, Other Instruments, Etc ............................................... 6  Section 5.7. Governmental Authorizations, Etc..................................................................... 7  Section 5.8. Litigation; Observance of Statutes and Orders ................................................ 7  Section 5.9. Taxes...................................................................................................................... 7  Section 5.10. Title to Property; Leases; Qualified Assets ....................................................... 7  Section 5.11. Licenses, Permits, Etc .......................................................................................... 8  Section 5.12. Compliance with Employee Benefit Plans ......................................................... 8  Section 5.13. Private Offering by the Company ...................................................................... 9  Section 5.14. Use of Proceeds; Margin Regulations ................................................................ 9  Section 5.15. Existing Indebtedness ........................................................................................ 10  Section 5.16. Foreign Assets Control Regulations, Etc ......................................................... 10  Section 5.17. Status under Certain Statutes ........................................................................... 11  Section 5.18. Separate Account ............................................................................................... 11  Section 5.19. Environmental Matters ..................................................................................... 12  SECTION 6. REPRESENTATIONS OF THE PURCHASERS ............................................ 12  Section 6.1. Purchase for Investment .................................................................................... 12  





 






BUSINESS.29029164.3     TABLE OF CONTENTS  (continued)  Page     -ii-     Section 6.2. Source of Funds .................................................................................................. 13  Section 6.3. Investment Experience; Access to Information .............................................. 14  Section 6.4. Authorization...................................................................................................... 15  Section 6.5. Restricted Securities .......................................................................................... 15  Section 6.6. No Public Market ............................................................................................... 15  Section 6.7. Legends ............................................................................................................... 15  SECTION 7. INFORMATION AS TO COMPANY .............................................................. 15  Section 7.1. Financial and Business Information................................................................. 15  Section 7.2. Officer’s Certificate ........................................................................................... 18  Section 7.3. Visitation ............................................................................................................. 19  Section 7.4. Electronic Delivery ............................................................................................. 19  SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES ...................................... 20  Section 8.1. Maturity .............................................................................................................. 20  Section 8.2. Optional Prepayments with Make-Whole Amount ........................................ 20  Section 8.3. Allocation of Partial Prepayments ................................................................... 21  Section 8.4. Maturity; Surrender, Etc .................................................................................. 21  Section 8.5. Purchase of Notes ............................................................................................... 21  Section 8.6. Make-Whole Amount ........................................................................................ 21  Section 8.7. Offer of Prepayment Upon Change in Control. .............................................. 23  Section 8.8. Payments Due on Non-Business Days .............................................................. 24  SECTION 9. AFFIRMATIVE COVENANTS ....................................................................... 24  Section 9.1. Compliance with Laws ...................................................................................... 24  Section 9.2. Insurance ............................................................................................................ 24  Section 9.3. Maintenance of Properties ................................................................................ 24  Section 9.4. Payment of Taxes ............................................................................................... 25  Section 9.5. Corporate Existence, Etc ................................................................................... 25  Section 9.6. Books and Records ............................................................................................. 25  Section 9.7. Subsidiary Guarantors ...................................................................................... 25  Section 9.8. Maintenance of Separate Account Status ........................................................ 27  Section 9.9. Investment Policies ............................................................................................. 27  SECTION 10. NEGATIVE COVENANTS .............................................................................. 27  Section 10.1. Transactions with Affiliates .............................................................................. 27  Section 10.2. Merger, Consolidation, Etc ............................................................................... 28  Section 10.3. Line of Business .................................................................................................. 29  Section 10.4. Economic Sanctions, Etc ................................................................................... 29  Section 10.5. Liens .................................................................................................................... 29  Section 10.6. Financial Covenants........................................................................................... 30  Section 10.7. Modifications of Certain Documents ............................................................... 30  SECTION 11. EVENTS OF DEFAULT .................................................................................. 30  





 






BUSINESS.29029164.3     TABLE OF CONTENTS  (continued)  Page     -iii-     SECTION 12. REMEDIES ON DEFAULT, ETC .................................................................... 33  Section 12.1. Acceleration ........................................................................................................ 33  Section 12.2. Other Remedies .................................................................................................. 34  Section 12.3. Rescission ............................................................................................................ 34  Section 12.4. No Waivers or Election of Remedies, Expenses, Etc ...................................... 34  SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES ................... 34  Section 13.1. Registration of Notes .......................................................................................... 34  Section 13.2. Transfer and Exchange of Notes ...................................................................... 35  Section 13.3. Replacement of Notes ........................................................................................ 35  SECTION 14. PAYMENTS ON NOTES ................................................................................. 36  Section 14.1. Place of Payment ................................................................................................ 36  Section 14.2. Payment by Wire Transfer ............................................................................... 36  Section 14.3. FATCA Information .......................................................................................... 36  SECTION 15. EXPENSES, ETC .............................................................................................. 37  Section 15.1. Transaction Expenses ........................................................................................ 37  Section 15.2. Certain Taxes ..................................................................................................... 37  Section 15.3. Survival ............................................................................................................... 38  SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;  ENTIRE AGREEMENT ................................................................................... 38  SECTION 17. AMENDMENT AND WAIVER ...................................................................... 38  Section 17.1. Requirements...................................................................................................... 38  Section 17.2. Solicitation of Holders of Notes ........................................................................ 39  Section 17.3. Binding Effect, Etc ............................................................................................. 39  Section 17.4. Notes Held by Company, Etc ............................................................................ 39  SECTION 18. NOTICES .......................................................................................................... 40  SECTION 19. REPRODUCTION OF DOCUMENTS ............................................................ 40  SECTION 20. CONFIDENTIAL INFORMATION ................................................................. 41  SECTION 21. SUBSTITUTION OF PURCHASER ................................................................ 42  SECTION 22. MISCELLANEOUS .......................................................................................... 42  Section 22.1. Successors and Assigns ...................................................................................... 42  Section 22.2. Accounting Terms .............................................................................................. 42  Section 22.3. Severability ......................................................................................................... 42  Section 22.4. Construction, Etc ............................................................................................... 43  Section 22.5. Counterparts; Electronic Signatures ............................................................... 43  Section 22.6. Governing Law ................................................................................................... 44  Section 22.7. Jurisdiction and Process; Waiver of Jury Trial .............................................. 44  





 






BUSINESS.29029164.3     TABLE OF CONTENTS  (continued)  Page     -iv-     Section 22.8. Division................................................................................................................ 45  





 






BUSINESS.29029164.3     TABLE OF CONTENTS  (continued)       -v-     SCHEDULE A — DEFINED TERMS  SCHEDULE 1.1(a) — FORM OF SERIES A NOTE  SCHEDULE 1.1(b) — FORM OF SERIES B NOTE  SCHEDULE 4.4(a) — FORM OF OPINION OF SPECIAL COUNSEL FOR THE   COMPANY  SCHEDULE 5.3 — DISCLOSURE MATERIALS  SCHEDULE 5.4 — SUBSIDIARIES OF THE COMPANY AND  OWNERSHIP OF SUBSIDIARY STOCK  SCHEDULE 5.5 — FINANCIAL STATEMENTS   SCHEDULE 5.10 — QUALIFIED ASSETS  SCHEDULE 5.15 — EXISTING INDEBTEDNESS OF THE COMPANY AND   ITS SUBSIDIARIES      





 






BUSINESS.29029164.3             TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,  ON BEHALF OF THE REAL ESTATE ACCOUNT   C/O TIAA  730 THIRD AVENUE  NEW YORK, NEW YORK 10017    $300,000,000 3.24% Series A Senior Notes due June 10, 2029  $200,000,000 3.35% Series B Senior Notes due June 10, 2032    June 10, 2022  To Each of the Purchasers Listed in  the Purchaser Schedule Hereto:  Ladies and Gentlemen:  TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New  York insurance company (“TIAA”), on behalf of THE REAL ESTATE ACCOUNT, a separate  account of TIAA (the “Company”), agrees with each of the Purchasers as follows:  SECTION 1. AUTHORIZATION OF NOTES; LIMITED RECOURSE    Section 1.1. Authorization of Notes.  The Company will authorize the issue and sale of  (a) $300,000,000 aggregate principal amount of its 3.24% Series A Senior Notes due June 10,  2029 (the “Series A Notes”) and (b) $200,000,000 aggregate principal amount of its 3.35% Series  B Senior Notes due June 10, 2032 (the “Series B Notes”; and together with the Series A Notes,  collectively the “Notes”).  The Series A Notes and the Series B Notes shall be substantially in the  form set out in Schedule 1.1(a) and Schedule 1.1(b), respectively.  Certain capitalized and other  terms used in this Agreement are defined in Schedule A and, for purposes of this Agreement, the  rules of construction set forth in Section 22.4 shall govern.  Section 1.2. Limited Recourse.  In no event whatsoever will any of the Company’s  partners, members, shareholders, directors, officers, employees or agents, (collectively, the  “Protected Persons”) be subject to any lien, levy, execution or any other enforcement procedure  relating directly or indirectly to this Agreement or any of the other Financing Documents or any  obligations hereunder or thereunder.  Without limitation of the foregoing, the Purchasers agree  that in any action, suit or other proceeding brought by any of them with respect to or under this  Agreement or any other Financing Document, the applicable Purchaser shall name only the  Company (unless otherwise required by law to enforce the Purchasers’ rights with respect to the  Company) and not any of the Protected Persons.  In addition, notwithstanding anything contained  in this Agreement or any other Financing Document, any liability of the Company shall be satisfied  solely from the assets and properties of the Teachers Insurance and Annuity Association of  America’s Real Estate Account established as a separate investment account of TIAA under New  York law on February 22, 1995, and under the regulation of the State of New York Insurance  Department (the “Separate Account”) (including all assets and properties allocated to or held for  





 






BUSINESS.29029164.3       2    the account of the Separate Account), and in no event shall any recourse be had to any assets or  properties held by TIAA in its general investment account or in any other of its existing or future  separate accounts other than the Separate Account.  SECTION 2. SALE AND PURCHASE OF NOTES.    Subject to the terms and conditions of this Agreement, the Company will issue and sell to  each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for  in Section 3, Notes in the principal amount and in the Series specified opposite such Purchaser’s  name in the Purchaser Schedule at the purchase price of 100% of the principal amount thereof.   The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall  have any liability to any Person for the performance or non-performance of any obligation by any  other Purchaser hereunder.  SECTION 3. CLOSINGS.    The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the  offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178-0060,  at 10:00 a.m., New York City time, at a closing (the “Closing”) on June 10, 2022.  At the Closing  the Company will deliver to each Purchaser the Notes of each Series to be purchased by such  Purchaser in the form of a single Note for each Series (or such greater number of Notes of each  Series in denominations of at least $100,000 as such Purchaser may request) dated the date of the  Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery  by such Purchaser to the Company or its order of immediately available funds in the amount of  the purchase price therefor by wire transfer of immediately available funds for the account of the  Company in accordance with the wire transfer instructions delivered by the Company to the  Purchasers pursuant to Section 4.10.  If at the Closing the Company shall fail to tender such Notes  to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section  4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election,  be relieved of all further obligations under this Agreement, without thereby waiving any rights  such Purchaser may have by reason of such failure by the Company to tender such Notes or any  of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction.  SECTION 4. CONDITIONS TO CLOSING.  Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser  at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing,  of the following conditions:  Section 4.1. Representations and Warranties.  The representations and warranties of  the Company in this Agreement shall be correct when made and at the Closing.  Section 4.2. Performance; No Default.  The Company shall have performed and  complied with all agreements and conditions contained in this Agreement required to be performed  or complied with by it prior to or at the Closing and from the date of this Agreement to the Closing  assuming that Sections 9 and 10 are applicable from the date of this Agreement.  From the date of  this Agreement until the Closing, before and after giving effect to the issue and sale of the Notes  





 






BUSINESS.29029164.3       3    (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event  of Default shall have occurred and be continuing.    Section 4.3. Compliance Certificates.    (a) Officer’s Certificate.  The Company shall have delivered to such Purchaser  an Officer’s Certificate, dated the date of the Closing, certifying that the conditions  specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.  (b) Secretary’s Certificate.  The Company shall have delivered to such  Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing,  certifying as to (i) the resolutions attached thereto and other corporate proceedings relating  to the authorization, execution and delivery of the Financing Documents to which the  Company is a party and (ii) the Company’s organizational documents as then in effect.  Section 4.4. Opinions of Counsel.  Such Purchaser shall have received opinions in form  and substance satisfactory to such Purchaser, dated the date of the Closing (a) from Dechert LLP,  counsel for the Company, covering the matters set forth in Schedule 4.4(a) and covering such other  matters incident to the transactions contemplated hereby as such Purchaser or its counsel may  reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the  Purchasers) and (b) from Morgan, Lewis & Bockius LLP, the Purchasers’ special counsel in  connection with such transactions, substantially in the form agreed with such Purchaser and  covering such other matters incident to such transactions as such Purchaser may reasonably  request.  Section 4.5. Purchase Permitted By Applicable Law, Etc.  On the date of the Closing,  such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each  jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section  1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance  companies without restriction as to the character of the particular investment, (b) not violate any  applicable law or regulation (including Regulation T, U or X of the Board of Governors of the  Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under  or pursuant to any applicable law or regulation, which law or regulation was not in effect on the  date hereof.  If requested by such Purchaser, such Purchaser shall have received an Officer’s  Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable  such Purchaser to determine whether such purchase is so permitted.  Section 4.6. Sale of Other Notes.  Contemporaneously with the Closing, the Company  shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased  by it at the Closing as specified in the Purchaser Schedule.  Section 4.7. Payment of Special Counsel Fees.  Without limiting Section 15.1, the  Company shall have paid on or before the Closing the reasonable and documented out-of-pocket  fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4 to the  extent reflected in a statement of such counsel rendered to the Company at least one Business Day  prior to the Closing.  





 






BUSINESS.29029164.3       4    Section 4.8. Private Placement Number.  A Private Placement Number issued by PPN  CUSIP Unit of CUSIP Global Services (in cooperation with the SVO) shall have been obtained  for each Series of the Notes.  Section 4.9. Changes in Corporate Structure.  The Company shall not have changed  its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or  consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any  time following the date of the most recent financial statements referred to in Schedule 5.5.  Section 4.10. Funding Instructions.    (a) At least three Business Days prior to the date of the Closing, each  Purchaser shall have received written instructions signed by a Responsible Officer on  letterhead of the Company specifying (i) the name and address of the transferee bank, (ii)  such transferee bank’s ABA number and (iii) the account name and number into which the  purchase price for the Notes is to be deposited, which account shall be fully opened and  able to receive micro deposits in accordance with this Section at least three (3) Business  Days prior to the date of Closing.   (b) An identifiable Responsible Officer of the Company shall confirm the  written instructions by a live videoconference made available to the Purchasers no later  than two (2) Business Days prior to the Closing.  (c) Each Purchaser has the right, but not the obligation, upon written notice  (which may be by email) to the Company, to elect to deliver a micro deposit (less than  $51.00) to the account identified in the written instructions no later than two (2) Business  Days prior to the date of Closing. If a Purchaser delivers a micro deposit, a Responsible  Officer must verbally verify the receipt and amount of the micro deposit to such Purchaser  on a telephone call initiated by such Purchaser prior to the date of Closing. The Company  shall not be obligated to return the amount of the micro deposit, nor will the amount of the  micro deposit be netted against the Purchaser’s purchase price of the Notes.  Section 4.11. Offeree Letter.  J.P. Morgan Securities LLC shall have delivered to the  Company, its counsel, each Purchaser and the Purchasers’ special counsel an offeree letter, in form  and substance satisfactory to the Purchasers and the Company, confirming the manner of the  offering of the Notes by such entity and the number of offerees.  Section 4.12. Amendment to Bank Credit Agreement.  Each Purchaser shall have  received a true and complete copy of the fully executed amendment to the Bank Credit Agreement,  dated March 9, 2022, among the Company, the Bank Agent and the Bank Lenders, such agreement  to be in form and substance satisfactory to such Purchaser, and the conditions to the effectiveness  thereof shall have been satisfied or waived.  Section 4.13. Proceedings and Documents.  All corporate and other proceedings in  connection with the transactions contemplated by this Agreement and all documents and  instruments incident to such transactions shall be satisfactory to such Purchaser and its special  counsel, and such Purchaser and its special counsel shall have received all such counterpart  





 






BUSINESS.29029164.3       5    originals or certified or other copies of such documents as such Purchaser or such special counsel  may reasonably request.  SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.    The Company represents and warrants to each Purchaser that:  Section 5.1. Organization; Power and Authority.  TIAA and each Subsidiary  Guarantor is a corporation or other legal entity duly organized, validly existing and in good  standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign legal  entity and is in good standing in each jurisdiction in which such qualification is required by law,  other than those jurisdictions as to which the failure to be so qualified or in good standing would  not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.   Each Obligor has the corporate power and authority to own or hold under lease the properties it  purports to own or hold under lease, to transact the business it transacts and proposes to transact,  to execute and deliver the Financing Documents to which it is a party and to perform the provisions  hereof and thereof.  Section 5.2. Authorization, Etc.  Each of the Financing Documents to which an Obligor  is a party has been duly authorized by all necessary corporate or equivalent action on the part of  such Obligor, and constitutes, or, in the case of each Financing Document other than this  Agreement, upon execution and delivery thereof will constitute, a legal, valid and binding  obligation of each Obligor, as the case may be, enforceable against such Obligor in accordance  with its terms, except as such enforceability may be limited by (a) applicable bankruptcy,  insolvency, reorganization, moratorium or other similar laws affecting the enforcement of  creditors’ rights generally and (b) general principles of equity (regardless of whether such  enforceability is considered in a proceeding in equity or at law).  Section 5.3. Disclosure.  The Company, through its agent, J.P. Morgan Securities LLC,  has delivered to each Purchaser a copy of a Private Placement Memorandum, dated February 23,  2022 (the “Memorandum”), relating to the transactions contemplated hereby.  This Agreement,  the other Financing Documents, the Memorandum, the financial statements listed in Schedule 5.5  and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the  Company prior to March 10, 2022 in connection with the transactions contemplated hereby and  identified in Schedule 5.3 (collectively, the “Disclosure Documents”), taken as a whole, do not  contain any untrue statement of a material fact or omit to state any material fact necessary to make  the statements therein not misleading in light of the circumstances under which they were made.   Except as disclosed in the Disclosure Documents, since December 31, 2021, there has been no  change in the financial condition, operations, business or properties of the Company or any  Subsidiary except changes that would not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.    (a) Schedule 5.4 contains (except as noted therein) complete and correct lists  of (i) the Company’s Subsidiaries, showing, as to each Subsidiary, the name thereof, the  jurisdiction of its organization, the percentage of shares of each class of its capital stock or  





 






BUSINESS.29029164.3       6    similar equity interests outstanding owned by the Company and each other Subsidiary and  whether such Subsidiary is a Subsidiary Guarantor and (ii) the Company’s directors and  senior officers.  (b) All of the outstanding shares of capital stock or similar equity interests of  each Subsidiary shown in Schedule 5.4 as being owned by the Company and its  Subsidiaries have been validly issued and, to the extent applicable, are fully paid and non- assessable and are owned by the Company or another Subsidiary free and clear of any Lien  that is prohibited by this Agreement.  (c) Each Subsidiary is a corporation or other legal entity duly organized,  validly existing and, where applicable, in good standing under the laws of its jurisdiction  of organization, and is duly qualified as a foreign corporation or other legal entity and,  where applicable, is in good standing in each jurisdiction in which such qualification is  required by law, other than those jurisdictions as to which the failure to be so qualified or  in good standing would not, individually or in the aggregate, reasonably be expected to  have a Material Adverse Effect.  Each such Subsidiary has the corporate or other power  and authority to own or hold under lease the properties it purports to own or hold under  lease and to transact the business it transacts and proposes to transact, except where the  failure to do so would not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.  (d) No Subsidiary is subject to any legal, regulatory, contractual or other  restriction (other than the agreements listed on Schedule 5.4 and customary limitations  imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to  pay dividends out of profits or make any other similar distributions of profits to the  Company or any of its Subsidiaries that owns outstanding shares of capital stock or similar  equity interests of such Subsidiary.  Section 5.5. Financial Statements; Material Liabilities.  The Company has delivered  to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on  Schedule 5.5.  All of such financial statements (including in each case the related schedules and  notes) fairly present in all material respects the consolidated financial position of the Company  and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated  results of their operations and cash flows for the respective periods so specified and have been  prepared in accordance with GAAP consistently applied throughout the periods involved except  as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal  year-end adjustments and lack of footnotes); provided that with respect to all or any portion of  such financial statements that are financial projections, pro forma financial information and other  forward-looking information, the Company represents only that such information was prepared in  good faith based upon assumptions and, in the case of financial projections and pro forma financial  information, good faith estimates, in each case, believed to be reasonable at the time made.  The  Company and its Subsidiaries do not have any Material liabilities that are not disclosed in the  Disclosure Documents.  Section 5.6. Compliance with Laws, Other Instruments, Etc.  The execution, delivery  and performance by each Obligor of the Financing Documents to which such Obligor is party will  





 






BUSINESS.29029164.3       7    not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of  any Lien in respect of any property of any Company Party under, any indenture, mortgage, deed  of trust, loan, purchase or credit agreement, lease, corporate charter, regulations or by-laws,  shareholders agreement or any other agreement or instrument to which any Company Party is  bound or by which any Company Party or any of their respective properties may be bound or  affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any  order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to  any Company Party or (c) violate any provision of any statute or other rule or regulation of any  Governmental Authority applicable to any Company Party.  Section 5.7. Governmental Authorizations, Etc.  No consent, approval or  authorization of, or registration, filing or declaration with, any Governmental Authority is required  in connection with the execution, delivery or performance by any Obligor of the Financing  Documents to which such Obligor is party, other than any filing required under the Securities  Exchange Act of 1934 or the rules and regulations promulgated thereunder on Form 8-K, Form  10-Q or Form 10-K.   Section 5.8. Litigation; Observance of Statutes and Orders.    (a) There are no actions, suits, investigations or proceedings pending or, to the  best knowledge of the Company, threatened against or affecting any Company Party  or  any property of any Company Party in any court or before any arbitrator of any kind or  before or by any Governmental Authority that would, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect.  (b) Neither the Company nor any other Company Party is (i) in violation of  any order, judgment, decree or ruling of any court, any arbitrator of any kind or any  Governmental Authority or (ii) in violation of any applicable law, ordinance, rule or  regulation of any Governmental Authority (including Environmental Laws, the USA  PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16),  which violation would, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.  Section 5.9. Taxes.  The Company Parties have filed all tax returns that are required to  have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such  returns and all other taxes and assessments payable by them, to the extent such taxes and  assessments have become due and payable and before they have become delinquent, except for  any taxes and assessments (a) the amount of which, individually or in the aggregate, is not Material  or (b) the amount, applicability or validity of which is currently being contested in good faith by  appropriate proceedings and with respect to which the applicable Company Party, as the case may  be, has established adequate reserves in accordance with GAAP.  The charges, accruals and  reserves on the books of the Company Parties in respect of U.S. federal, state or other taxes for all  fiscal periods are adequate. The U.S. federal income tax liabilities of the Company Parties have  been finally determined (whether by reason of completed audits or the statute of limitations having  run) for all fiscal years up to and including the fiscal year ended December 31, 2013.   Section 5.10. Title to Property; Leases; Qualified Assets.    





 






BUSINESS.29029164.3       8    (a) The Company Parties have good and sufficient title to their respective  Material properties, including all such properties reflected in the most recent audited  balance sheet referred to in Section 5.5 or purported to have been acquired by any Company  Party after such date (except as sold or otherwise disposed of in the ordinary course of  business), in each case free and clear of Liens prohibited by this Agreement, except for  those defects in title and Liens that, individually or in the aggregate, would not have a  Material Adverse Effect.    (b) Each Qualified SPE which is a Company Party has good title to, or valid  leasehold interest in, each Qualified Asset owned by such Qualified SPE. Schedule 5.10(b)  sets out, as of the date of this Agreement, (i) all of the real property interests held by the  Company and (ii) a correct and complete list of Qualified Assets, indicating in each case  whether the respective property is owned or leased, the identity of the owner or lessee and  the location of the respective property.  Each of the Qualified Assets included by the  Company in calculation of the Unencumbered Asset Value satisfies all of the requirements  contained in this Agreement for the same to be included therein.    Section 5.11. Licenses, Permits, Etc.  The Company Parties own or possess all licenses,  permits, franchises, authorizations, patents, copyrights, proprietary software, service marks,  trademarks and trade names, or rights thereto, that individually or in the aggregate are Material,  without known conflict with the rights of others, except for those conflicts that, individually or in  the aggregate, would not have a Material Adverse Effect.  Section 5.12. Compliance with Employee Benefit Plans.    (a) Each Obligor and each ERISA Affiliate have operated and administered  each Plan in compliance with all applicable laws except for such instances of noncom- pliance as have not resulted in and could not, individually or in the aggregate, reasonably  be expected to result in a Material Adverse Effect.  No Obligor nor any ERISA Affiliate  has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax  provisions of the Code relating to employee benefit plans (as defined in section 3 of  ERISA), and no event, transaction or condition has occurred or exists that would,  individually or in the aggregate, reasonably be expected to result in the incurrence of any  such liability by any Obligor or any ERISA Affiliate, or in the imposition of any Lien on  any of the rights, properties or assets of any Obligor or any ERISA Affiliate, in either case  pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty  or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the  granting of a security interest in connection with the amendment of a Plan, other than such  liabilities or Liens as would not be individually or in the aggregate Material.  (b) The present value of the aggregate benefit liabilities under each of the  Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most  recently ended plan year on the basis of the actuarial assumptions specified for funding  purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate  current value of the assets of such Plan allocable to such benefit liabilities by an amount  that would reasonably be expected to result in a Material Adverse Effect.  The term  





 






BUSINESS.29029164.3       9    “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms  “current value” and “present value” have the meaning specified in section 3 of ERISA.  (c) No Obligor nor any of its ERISA Affiliates have incurred withdrawal  liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or  4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate  would reasonably be expected to result in a Material Adverse Effect.  (d) The expected postretirement benefit obligation (determined as of the last  day of the Company’s most recently ended fiscal year in accordance with Financial  Accounting Standards Board Accounting Standards Codification Topic 715-60, without  regard to liabilities attributable to continuation coverage mandated by section 4980B of the  Code) of the Company and its Subsidiaries would not reasonably be expected to result in a  Material Adverse Effect.  (e) The execution and delivery of this Agreement and the issuance and sale of  the Notes hereunder will not involve any transaction that is subject to the prohibitions of  section 406(a) of ERISA or in connection with which a tax could be imposed pursuant to  section 4975(c)(1)(A)-(D) of the Code.  The representation by the Obligors to each  Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject  to the accuracy of such Purchaser’s representation in Section 6.2 as to the sources of the  funds to be used to pay the purchase price of the Notes to be purchased by such Purchaser.  (f) The Company and its Subsidiaries do not have any Non-U.S. Plans.  Section 5.13. Private Offering by the Company.  No Obligor nor anyone acting on its  behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy the  Notes or any similar Securities from, or otherwise approached or negotiated in respect thereof  with, any Person other than the Purchasers and not more than 70 other Institutional Investors, each  of which has been offered the Notes at a private sale for investment.  No Obligor nor anyone acting  on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes  to the registration requirements of section 5 of the Securities Act or to the registration requirements  of any Securities or blue sky laws of any applicable jurisdiction.  Section 5.14. Use of Proceeds; Margin Regulations.  The Company will apply the  proceeds of the sale of the Notes for general corporate purposes.  No part of the proceeds from the  sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or  carrying any margin stock within the meaning of Regulation U of the Board of Governors of the  Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any  Securities under such circumstances as to involve the Company in a violation of Regulation X of  said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said  Board (12 CFR 220).  Margin stock does not constitute more than 25% of the value of the  consolidated assets of the Company and its Subsidiaries and the Company does not have any  present intention that margin stock will constitute more than 25% of the value of such assets.  As  used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have  the meanings assigned to them in said Regulation U.  





 






BUSINESS.29029164.3       10    Section 5.15. Existing Indebtedness.    (a) Except as described therein, Schedule 5.15 sets forth a complete and  correct list of all outstanding Indebtedness of the Company and its Subsidiaries in an  aggregate amount in excess of $25,000,000 as of December 31, 2021 (provided that the  aggregate amount of all such Indebtedness not listed on Schedule 5.15 does not exceed  $100,000,000 as of December 31, 2021) (including descriptions of the obligors and  obligees, principal amounts outstanding, any collateral therefor and any Guaranty thereof),  since which date there has been no Material change in the amounts, interest rates, sinking  funds, installment payments or maturities of the Indebtedness of the Company or its  Subsidiaries.  Neither the Company nor any Subsidiary is in default and no waiver of  default is currently in effect, in the payment of any principal or interest on any Indebtedness  of the Company or such Subsidiary and no event or condition exists with respect to any  Indebtedness of the Company or any Subsidiary the outstanding principal amount of which  exceeds $10,000,000 that would permit (or that with notice or the lapse of time, or both,  would permit) one or more Persons to cause such Indebtedness to become due and payable  before its stated maturity or before its regularly scheduled dates of payment.  (b) Neither the Company nor any Subsidiary is a party to, or otherwise subject  to any provision contained in, any instrument evidencing Indebtedness of the Company or  such Subsidiary, any agreement relating thereto or any other agreement (including its  charter or any other organizational document) which limits the amount of, or otherwise  imposes restrictions on the incurring of, Indebtedness of the Company, except the  Financing Documents and as disclosed in Schedule 5.15.  Section 5.16. Foreign Assets Control Regulations, Etc.    (a) No Obligor nor any Controlled Entity (i) is a Blocked Person, (ii) has been  notified that its name appears or may in the future appear on a State Sanctions List or (iii)  is a target of sanctions that have been imposed by the United Nations or the European  Union.  (b) No Obligor nor any Controlled Entity (i) has violated, been found in  violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions  Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to the Company’s  knowledge, is under investigation by any Governmental Authority for possible violation of  any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption  Laws.  (c) No part of the proceeds from the sale of the Notes hereunder:  (i) constitutes or will constitute funds obtained on behalf of any  Blocked Person or will otherwise be used by any Obligor or any Controlled Entity,  directly or indirectly, (A) in connection with any investment in, or any transactions  or dealings with, any Blocked Person, (B) for any purpose that would cause any  Purchaser to be in violation of any U.S. Economic Sanctions Laws or (C) otherwise  in violation of any U.S. Economic Sanctions Laws;  





 






BUSINESS.29029164.3       11    (ii) will be used, directly or indirectly, in violation of, or cause any  Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or  (iii) will be used, directly or indirectly, for the purpose of making any  improper payments, including bribes, to any Governmental Official or commercial  counterparty in order to obtain, retain or direct business or obtain any improper  advantage, in each case which would be in violation of, or cause any Purchaser to  be in violation of, any applicable Anti-Corruption Laws.  (d) Each Obligor has established procedures and controls which it reasonably  believes are adequate (and otherwise comply with applicable law) to ensure that such  Obligor and each Controlled Entity is and will continue to be in compliance with all  applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti- Corruption Laws.  Section 5.17. Status under Certain Statutes.  No Obligor nor any Subsidiary is subject  to regulation under the Investment Company Act of 1940, the Public Utility Holding Company  Act of 2005, the ICC Termination Act of 1995, or the Federal Power Act.  Section 5.18. Separate Account.    (a) The Company is a “separate account” established by TIAA, in accordance  with and pursuant to Section 4240 of the New York Insurance Law (the “NYIL”).  Income  and gains or losses, realized or unrealized, from assets allocated to the Company are  credited to or charged against, and accounted for separately from, other income, gains or  losses of TIAA.  The portions of the contracts attributable to the Company are without any  guaranty, including any index guaranty of the dollar amounts of benefits or other payments  thereunder or of the value of such portions.  (b) Assets of the Company are held by TIAA in accordance with the NYIL.   These assets are not subject to general creditors of TIAA and are subject only to liabilities  specifically incurred by TIAA with respect to the Company.  (c) Company is an “insurance company pooled separate account” (within the  meaning of PTE 90-1), and there is no “employee benefit plan” (as defined in Section 3(3)  of the ERISA which is subject to Title I of ERISA, or “plan” as defined in the Code which  is subject to section 4975 of the Code, treating as a single plan all plans maintained by the  same employer or employee organization, which has assets in such pooled separate account  that exceed ten percent (10%) of the total assets of that account.  The issuance of the Notes  by Company pursuant to this Agreement is, accordingly, an exempt transaction covered by  the pooled separate account exemption, PTE 90-1, and none of the transactions  contemplated by the Financing Documents will cause the Company to engage in a  transaction in violation of section 406(b) of ERISA or section 4975(c)(1)(E) or (F) of the  Code that could subject the Purchasers to any tax or penalty on prohibited transactions  imposed under section 4975 of the Code or section 502(i) of ERISA.  (d) The consummation of this Agreement and the subsequent issuance of the  Notes and payment and performance of the obligations hereunder, which are limited to the  





 






BUSINESS.29029164.3       12    assets of the Company and the Qualified Assets and are evidenced by the Financing  Documents are within the business purposes of TIAA in establishing the Company, are  consistent with the documents under which the Company was established and is maintained  and are in compliance with applicable law.  (e) Both TIAA and the Company are in compliance with the Plan of Operation.  Section 5.19. Environmental Matters.  The Company has obtained all environmental,  health and safety permits, licenses and other authorizations required under all Environmental Laws  to carry on its business as now being or as proposed to be conducted, except to the extent failure  to have any such permit, license or authorization could not (either individually or in the aggregate)  reasonably be expected to have a Material Adverse Effect.  For each Qualified SPE which is a  Company Party, such Person has obtained all environmental, health and safety permits, licenses  and other authorizations required under all Environmental Laws to carry on its business with  respect to the Qualified Asset as now being or as proposed to be conducted, except to the extent  failure to have any such permit, license or authorization could not (either individually or in the  aggregate) reasonably be expected to have a Material Adverse Effect.  To the Company’s  knowledge, each of such permits, licenses and authorizations is in full force and effect and each of  the Company Parties is in compliance with the terms and conditions thereof, and is also in  compliance with all other limitations, restrictions, conditions, standards, prohibitions,  requirements, obligations, schedules and timetables contained in any applicable Environmental  Law or in any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter  issued, entered, promulgated or approved thereunder, except to the extent failure to comply  therewith could not (either individually or in the aggregate) reasonably be expected to have a  Material Adverse Effect.  In addition, to the Company’s knowledge, no written notice, notification, demand, request  for information, citation, summons or order has been issued, no complaint has been filed, no  penalty has been assessed and no investigation or review is pending or threatened by any  Governmental Authority with respect to any alleged failure by the Company Parties to have any  environmental, health or safety permit, license or other authorization required under any  Environmental Law in connection with the conduct of the business of the Company Parties (and,  with respect to the Qualified SPE, only with respect to the Qualified Asset) or with respect to any  generation, treatment, storage, recycling, transportation, discharge or disposal, or any release of  any Hazardous Materials generated with respect to any of the Company Parties’ properties, which  failure, if not remedied, could reasonably be expected to have a Material Adverse Effect.  SECTION 6. REPRESENTATIONS OF THE PURCHASERS.    Section 6.1. Purchase for Investment.  Each Purchaser severally represents that it is  purchasing the Notes for its own account or for one or more separate accounts maintained by such  Purchaser or for the account of one or more pension or trust funds and not with a view to the  distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all  times be within such Purchaser’s or their control.  Each Purchaser understands that the Notes have  not been registered under the Securities Act and may be resold only if registered pursuant to the  provisions of the Securities Act or if an exemption from registration is available, except under  





 






BUSINESS.29029164.3       13    circumstances where neither such registration nor such an exemption is required by law, and that  the Company is not required to register the Notes.  Section 6.2. Source of Funds.  Each Purchaser severally represents that at least one of  the following statements is an accurate representation as to each source of funds (a “Source”) to  be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser  hereunder:  (a) the Source is an “insurance company general account” (as the term is  defined in the United States Department of Labor’s Prohibited Transaction Exemption  (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual  statement for life insurance companies approved by the NAIC (the “NAIC Annual  Statement”)) for the general account contract(s) held by or on behalf of any employee  benefit plan together with the amount of the reserves and liabilities for the general account  contract(s) held by or on behalf of any other employee benefit plans maintained by the  same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee  organization in the general account do not exceed 10% of the total reserves and liabilities  of the general account (exclusive of separate account liabilities) plus surplus as set forth in  the NAIC Annual Statement filed with such Purchaser’s state of domicile; or  (b) the Source is a separate account that is maintained solely in connection  with such Purchaser’s fixed contractual obligations under which the amounts payable, or  credited, to any employee benefit plan (or its related trust) that has any interest in such  separate account (or to any participant or beneficiary of such plan (including any  annuitant)) are not affected in any manner by the investment performance of the separate  account; or  (c) the Source is either (i) an insurance company pooled separate account,  within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the  meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in  writing pursuant to this clause (c) at least four (4) Business Days prior to the date such  Purchaser purchases Notes, no employee benefit plan or group of plans maintained by the  same employer or employee organization beneficially owns more than 10% of all assets  allocated to such pooled separate account or collective investment fund; or  (d) the Source constitutes assets of an “investment fund” (within the meaning  of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional  asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no  employee benefit plan’s assets that are managed by the QPAM in such investment fund,  when combined with the assets of all other employee benefit plans established or  maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of  the QPAM Exemption) of such employer or by the same employee organization and  managed by such QPAM, represent more than 20% of the total client assets managed by  such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,  neither the QPAM nor a person controlling or controlled by the QPAM maintains an  ownership interest in the Company that would cause the QPAM and the Company to be  “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of  





 






BUSINESS.29029164.3       14    such QPAM and (ii) the names of any employee benefit plans whose assets in the  investment fund, when combined with the assets of all other employee benefit plans  established or maintained by the same employer or by an affiliate (within the meaning of  Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee  organization, represent 10% or more of the assets of such investment fund, have been  disclosed to the Company in writing pursuant to this clause (d) at least four (4) Business  Days prior to the date such Purchaser purchases Notes; or  (e) the Source constitutes assets of a “plan(s)” (within the meaning of Part  IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset  manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the  conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the  INHAM nor a person controlling or controlled by the INHAM (applying the definition of  “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the  Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit  plan(s) whose assets constitute the Source have been disclosed to the Company in writing  pursuant to this clause (e) at least four (4) Business Days prior to the date such Purchaser  purchases Notes; or  (f) the Source is a governmental plan; or  (g) the Source does not include assets of any employee benefit plan, other than  a plan exempt from the coverage of ERISA or section 4975 of ERISA.  As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and  “separate account” shall have the respective meanings assigned to such terms in section 3 of  ERISA.  With respect to any disclosure by a Purchaser to the Company pursuant to this Section 6.2, if the  Company notifies such Purchaser promptly (but in no event later than two (2) Business Days prior  to the proposed purchase of the Notes) after receiving such disclosure, that it could not make the  representation in Section 5.12(e) with respect to such employee benefit plan(s), such Purchaser  will not purchase Notes with plan assets of such employee benefit plan and such purchase shall  not be effectuated until such time, if any, as the Purchaser represents that it is relying on another  clause of Section 6.2 or the Company reasonably determines that the proposed transfer would not  be prohibited by Section 406 of ERISA.  For the avoidance of doubt, references in this paragraph  to “Purchaser” shall refer to each Purchaser, each Substitute Purchaser and each transferee of a  Note pursuant to Section 13.2.  Section 6.3. Investment Experience; Access to Information.  Each Purchaser (for  itself and for each account for which such Purchaser is acquiring the Notes) (a) is an “accredited  investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act or a  Qualified Institutional Buyer, (b) either alone or together with its representatives has such  knowledge and experience in financial and business matters as to be capable of evaluating the  merits and risks of this investment and make an informed decision to so invest, and has so  evaluated the risks and merits of such investment, (c) has the ability to bear the economic risks of  this investment and can afford a complete loss of such investment, (d) understands the terms of  





 






BUSINESS.29029164.3       15    and risks associated with the purchase of the Notes, including, without limitation, a lack of  liquidity, pricing availability and risks associated with the industry in which the Company  operates, (e) has had the opportunity to review (i) the Disclosure Documents, (ii) the financial  statements set forth on Schedule 5.5 and (iii) such other disclosure regarding the Company Parties,  their business, their management and their financial affairs and condition as such Purchaser has  determined to be necessary in connection with the purchase of the Notes, and (f) has had an  opportunity to ask such questions and make such inquiries concerning the conditions of the  offering of the Notes, the Company Parties, their business, the management and their financial  affairs and condition, and has had an opportunity to review the Company’s facilities, in each case  Purchaser has deemed appropriate in connection with such purchase and to receive satisfactory  answers to such questions and inquiries.    Section 6.4. Authorization.  Each Purchaser has full power and authority to enter into  this Agreement.  This Agreement, when executed and delivered by such Purchaser, will constitute  valid and legally binding obligations of such Purchaser, enforceable in accordance with their terms,  except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent  conveyance and any other laws of general application affecting enforcement of creditors’ rights  generally, and as limited by laws relating to the availability of specific performance, injunctive  relief or other equitable remedies.    Section 6.5. Restricted Securities.  Each Purchaser understands that the Notes have not  been registered under the Securities Act and may be resold only if registered pursuant to the  provisions of the Securities Act or if an exemption from registration is available, except under  circumstances where neither such registration nor such an exemption is required by law, and that  the Company is not required to register the Notes.    Section 6.6. No Public Market.  Each Purchaser understands that no public market now  exists for the Notes, and that the Company has made no assurances that a public market will ever  exist for the Notes.    Section 6.7. Legends.  Each Purchaser understands that the Notes may be notated with  the following legend:    “THE NOTE REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE  SECURITIES ACT OF 1933, AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT  WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION  THEREOF.  NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE  REGISTRATION STATEMENT RELATED THERETO OR UNLESS AN EXEMPTION  FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 IS AVAILABLE.”  SECTION 7. INFORMATION AS TO COMPANY.    Section 7.1. Financial and Business Information.  The Company shall deliver to each  Purchaser and each holder of a Note that is an Institutional Investor:  





 






BUSINESS.29029164.3       16    (a) Quarterly Statements — within 60 days (or such shorter period as is the  earlier of (x) 15 days greater than the period applicable to the filing of the Company’s  Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC regardless of whether  the Company is subject to the filing requirements thereof and (y) the date by which such  financial statements are required to be delivered under any Material Credit Facility or the  date on which such corresponding financial statements are delivered under any Material  Credit Facility if such delivery occurs earlier than such required delivery date) after the  end of each quarterly fiscal period in each fiscal year of the Company (other than the last  quarterly fiscal period of each such fiscal year), duplicate copies of,  (i) a consolidated balance sheet of the Company and its Subsidiaries as  at the end of such quarter, and  (ii) consolidated statements of income, changes in shareholders’ equity  and cash flows of the Company and its Subsidiaries, for such quarter and (in the  case of the second and third quarters) for the portion of the fiscal year ending with  such quarter,  setting forth in each case in comparative form the figures for the corresponding periods in  the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP  applicable to quarterly financial statements generally, and certified by a Senior Financial  Officer as fairly presenting, in all material respects, the financial position of the companies  being reported on and their results of operations and cash flows, subject to changes  resulting from year-end adjustments and the absence of footnotes;  (b) Annual Statements — within 120 days (or such shorter period as is the  earlier of (x) 15 days greater than the period applicable to the filing of the Company’s  Annual Report on Form 10-K (the “Form 10-K”) with the SEC regardless of whether the  Company is subject to the filing requirements thereof and (y) the date by which such  financial statements are required to be delivered under any Material Credit Facility or the  date on which such corresponding financial statements are delivered under any Material  Credit Facility if such delivery occurs earlier than such required delivery date) after the  end of each fiscal year of the Company, duplicate copies of  (i) a consolidated balance sheet of the Company and its Subsidiaries as  at the end of such year, and  (ii) consolidated statements of income, changes in shareholders’ equity  and cash flows of the Company and its Subsidiaries for such year,  setting forth in each case in comparative form the figures for the previous fiscal year, all in  reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion  thereon (without a “going concern” or similar qualification or exception and without any  qualification or exception as to the scope of the audit on which such opinion is based) of  independent public accountants of recognized national standing, which opinion shall state  that such financial statements present fairly, in all material respects, the financial position  of the companies being reported upon and their results of operations and cash flows and  





 






BUSINESS.29029164.3       17    have been prepared in conformity with GAAP, and that the examination of such  accountants in connection with such financial statements has been made in accordance with  generally accepted auditing standards, and that such audit provides a reasonable basis for  such opinion in the circumstances;  (c) SEC and Other Reports — promptly upon their becoming available, one  copy of (i) each financial statement, report, notice, proxy statement or similar document  sent by the Company or any Subsidiary (x) to its creditors under any Material Credit  Facility (excluding information sent to such creditors in the ordinary course of  administration of a credit facility, such as information relating to pricing and borrowing  availability) or (y) to its public Securities holders generally, and (ii) each regular or  periodic report, each registration statement (without exhibits except as expressly requested  by such Purchaser or holder), and each prospectus and all amendments thereto filed by the  Company or any Subsidiary with the SEC;  (d) Notice of Default or Event of Default — promptly, and in any event within  5 days after a Responsible Officer becoming aware of the existence of any Default or Event  of Default, a written notice specifying the nature and period of existence thereof and what  action the Company is taking or proposes to take with respect thereto;  (e) Employee Benefits Matters — promptly, and in any event within 5 days  after a Responsible Officer becoming aware of any of the following, a written notice setting  forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate  proposes to take with respect thereto:  (i) with respect to any Plan, any reportable event, as defined in  section 4043(c) of ERISA and the regulations thereunder, for which notice thereof  has not been waived pursuant to such regulations as in effect on the date hereof;  (ii) the taking by the PBGC of steps to institute, or the threatening by  the PBGC of the institution of, proceedings under section 4042 of ERISA for the  termination of, or the appointment of a trustee to administer, any Plan, or the receipt  by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that  such action has been taken by the PBGC with respect to such Multiemployer Plan;  (iii) any event, transaction or condition that could result in the incurrence  of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of  ERISA or the penalty or excise tax provisions of the Code relating to employee  benefit plans, or in the imposition of any Lien on any of the rights, properties or  assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA  or such penalty or excise tax provisions, if such liability or Lien, taken together  with any other such liabilities or Liens then existing, would reasonably be expected  to have a Material Adverse Effect; or  (iv) receipt of notice of the imposition of a Material financial penalty  (which for this purpose shall mean any tax, penalty or other liability, whether by  way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;  





 






BUSINESS.29029164.3       18    (f) Resignation or Replacement of Auditors — within 10 days following the  date on which the Company’s auditors resign or the Company elects to change auditors, as  the case may be, notification thereof, together with such further information as the  Required Holders may request;   (g) Environmental  - with reasonable promptness, the assertion of a claim of  any Environmental Liability by any Person against, or with respect to any activities of, the  Company Parties (provided, with respect to a Qualified SPE, only as to a Qualified Asset),  and any alleged violation of or noncompliance by or on behalf of any Company Party with  any Environmental Laws or any permits, licenses or authorizations, other than any claim  of Environmental Liability or alleged violation that, if adversely determined, would not  reasonably be expected to (either individually or in the aggregate) have a Material Adverse  Effect;  (h) Legal Status - with reasonable promptness, any change in the Company’s  status as a separate account of TIAA under applicable law; and  (i) Requested Information — with reasonable promptness, such other data and  information relating to the business, operations, affairs, financial condition, assets or  properties of the Company or any of its Subsidiaries or relating to the ability of the  Company to perform its obligations hereunder and under the Notes as from time to time  may be reasonably requested by the Required Holders, in each case to the extent reasonably  available to the Company.   Section 7.2. Officer’s Certificate.  Each set of financial statements delivered to a  Purchaser or a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied  by a certificate of a Senior Financial Officer:  (a) Covenant Compliance — (i) setting forth (A) the information from such  financial statements that is required in order to establish whether the Company was in  compliance with the requirements of Section 10 during the quarterly or annual period  covered by the financial statements then being furnished, (including with respect to each  such provision that involves mathematical calculations, the information from such  financial statements that is required to perform such calculations) and detailed calculations  of the maximum or minimum amount, ratio or percentage, as the case may be, permissible  under the terms of such Section, and the calculation of the amount, ratio or percentage then  in existence, (B) whether any change in GAAP or in the application thereof has occurred  since the date of the audited financial statements referred to in 7.1(b) and, if any such  change has occurred, specifying the effect of such change on the financial statements, and  (C) solely to the extent required to be delivered under any Material Credit Facility, an  updated Schedule 5.10 listing all Qualified Assets and (ii) certifying that (A) all Qualified  Assets so listed on such updated Schedule 5.10 fully qualify as such under the applicable  criteria for inclusion as Qualified Assets, and (B) all acquisitions, dispositions or other  removals of Qualified Assets completed during such quarterly accounting period, calendar  year, or other fiscal period were permitted under this Agreement, and (C) the acquisition  cost or principal balance of any Qualified Assets, as applicable, acquired during such  period and any other information that the Required Holders may require to determine the  





 






BUSINESS.29029164.3       19    Unencumbered Asset Value of such Qualified Asset, and the Qualified Asset Value of any  Qualified Assets removed during such period.  In the event that the Company or any  Subsidiary has made an election to measure any financial liability using fair value (which  election is being disregarded for purposes of determining compliance with this Agreement  pursuant to Section 22.2) as to the period covered by any such financial statement, such  Senior Financial Officer’s certificate as to such period shall include a reconciliation from  GAAP with respect to such election;  (b) Event of Default — certifying that such Senior Financial Officer has  reviewed the relevant terms hereof and has made, or caused to be made, under his or her  supervision, a review of the transactions and conditions of the Company and its  Subsidiaries from the beginning of the quarterly or annual period covered by the statements  then being furnished to the date of the certificate and that such review shall not have  disclosed the existence during such period of any condition or event that constitutes a  Default or an Event of Default or, if any such condition or event existed or exists,  specifying the nature and period of existence thereof and what action the Company shall  have taken or proposes to take with respect thereto; and  (c) Subsidiary Guarantors — setting forth a list of all Subsidiaries that are  Subsidiary Guarantors and certifying that each Subsidiary that is required to be a  Subsidiary Guarantor pursuant to Section 9.7 is a Subsidiary Guarantor, in each case, as of  the date of such certificate of Senior Financial Officer.  Section 7.3. Visitation.  The Company shall permit the representatives of each  Purchaser and each holder of a Note that is an Institutional Investor:  (a) No Event of Default — if no Event of Default then exists, at the expense of  such Purchaser or such holder and upon reasonable prior notice to the Company, to visit  the principal executive office of the Company, to discuss the affairs, finances and accounts  of the Company and the other Company Parties with the Company’s officers, and (with the  consent of the Company, which consent will not be unreasonably withheld) to visit the  other offices and properties of the Company and each other Company Party, all at such  reasonable times and as often as may be reasonably requested in writing; may only be  exercised once per calendar year for all holders of the Notes collectively and  (b) Default or Event of Default — if a Default or Event of Default then exists,  at the expense of the Company and upon at least five (5) Business Days prior notice to the  Company to visit and inspect any of the offices or properties of the Company or any other  Company Party, to examine all their respective books of account, records, reports and other  papers, to make copies and extracts therefrom, and to discuss their respective affairs,  finances and accounts with their respective officers and independent public accountants  (and by this provision the Company authorizes said accountants to discuss the affairs,  finances and accounts of the Company and the other Company Parties), all at such times  and as often as may be reasonably requested.  Section 7.4. Electronic Delivery.  Financial statements, opinions of independent  certified public accountants, other information and Officer’s Certificates that are required to be  





 






BUSINESS.29029164.3       20    delivered by the Company pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed  to have been delivered if the Company satisfies any of the following requirements with respect  thereto:  (a) such financial statements satisfying the requirements of Section 7.1(a) or  (b) and related Officer’s Certificate satisfying the requirements of Section 7.2 and any other  information required under Section 7.1(c) are delivered to each Purchaser or holder of a  Note by e-mail at the e-mail address set forth in such holder’s Purchaser Schedule or as  communicated from time to time in a separate writing delivered to the Company;  (b) the Company shall have timely filed such Form 10–Q or Form 10–K,  satisfying the requirements of Section 7.1(a) or Section 7.1(b), as the case may be, with the  SEC on EDGAR;  (c) the Company shall have timely filed any of the items referred to in Section  7.1(c) with the SEC on EDGAR;  provided however, that in no case shall access to such financial statements, other information and  Officer’s Certificates be conditioned upon any waiver or other agreement or consent (other than  confidentiality provisions consistent with Section 21 of this Agreement); provided further, that in  the case of any of clauses (b) or (c), the Company shall have given each holder of a Note prior  written notice, which may be by e-mail or in accordance with Section 19, of such posting or filing  in connection with each delivery, provided further, that upon request of any holder to receive paper  copies of such forms, financial statements, other information and Officer’s Certificates or to  receive them by e-mail, the Company will promptly e-mail them or deliver such paper copies, as  the case may be, to such holder.  SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES.    Section 8.1. Maturity.  As provided therein, the entire unpaid principal balance of each  Note shall be due and payable on the Maturity Date thereof.  Section 8.2. Optional Prepayments with Make-Whole Amount.  The Company may,  at its option, upon notice as provided below, prepay at any time all, or from time to time any part  of, the Notes, in an amount not less than 5% of the aggregate principal amount of the Notes then  outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, and  the Make-Whole Amount determined for the prepayment date with respect to such principal  amount; provided that so long as no Default or Event of Default shall have occurred and be  continuing no Make-Whole Amount shall be due if such Notes are prepaid during the last 90 days  prior to the applicable Maturity Date of such Notes.  The Company will give each holder of Notes  written notice of each optional prepayment under this Section 8.2 not less than 10 days and not  more than 60 days prior to the date fixed for such prepayment unless the Company and the  Required Holders agree to another time period pursuant to Section 17.  Each such notice shall  specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to  be prepaid on such date, the principal amount of each Note held by such holder to be prepaid  (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date  with respect to such principal amount being prepaid, and shall be accompanied by a certificate of  





 






BUSINESS.29029164.3       21    a Senior Financial Officer as to the estimated Make-Whole Amount, if any, due in connection with  such prepayment (calculated as if the date of such notice were the date of the prepayment), setting  forth the details of such computation.  Two Business Days prior to such prepayment, the Company  shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the  calculation of such Make-Whole Amount, if any, as of the specified prepayment date.  Section 8.3. Allocation of Partial Prepayments.  In the case of each partial prepayment  of the Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be  allocated among all of the Notes (without regard to Series) at the time outstanding in proportion,  as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called  for prepayment.  Section 8.4. Maturity; Surrender, Etc.  In the case of each prepayment of Notes  pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become  due and payable on the date fixed for such prepayment, together with interest on such principal  amount accrued to such date and the applicable Make-Whole Amount, if any.  From and after such  date, unless the Company shall fail to pay such principal amount when so due and payable, together  with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount  shall cease to accrue.  Any Note paid or prepaid in full shall be surrendered to the Company and  cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal  amount of any Note.  Section 8.5. Purchase of Notes.  The Company will not and will not permit any Affiliate  to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding  Notes except (a) upon the payment or prepayment of the Notes in accordance with this Agreement  and the Notes or (b) pursuant to an offer to purchase made by the Company or an Affiliate pro rata  to the holders of all Notes at the time outstanding upon the same terms and conditions.  Any such  offer shall provide each holder with sufficient information to enable it to make an informed  decision with respect to such offer, and shall remain open for at least 20 Business Days.  If the  holders of more than 50% of the principal amount of the Notes then outstanding accept such offer,  the Company shall promptly notify the remaining holders of such fact and the expiration date for  the acceptance by holders of Notes of such offer shall be extended by the number of days necessary  to give each such remaining holder at least 10 Business Days from its receipt of such notice to  accept such offer.  The Company will promptly cancel all Notes acquired by it or any Affiliate  pursuant to any payment, prepayment or purchase of Notes pursuant to this Agreement and no  Notes may be issued in substitution or exchange for any such Notes.  Section 8.6. Make-Whole Amount.    The term “Make-Whole Amount” means, with respect to any Note of any Series, an  amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments  with respect to the Called Principal of such Note of such Series over the amount of such Called  Principal, provided that the Make-Whole Amount may in no event be less than zero.  For the  purposes of determining the Make-Whole Amount, the following terms have the following  meanings:  





 






BUSINESS.29029164.3       22    “Called Principal” means, with respect to any Note of any Series, the principal of such  Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately  due and payable pursuant to Section 12.1, as the context requires.  “Discounted Value” means, with respect to the Called Principal of any Note of any Series,  the amount obtained by discounting all Remaining Scheduled Payments with respect to such  Called Principal from their respective scheduled due dates to the Settlement Date with respect to  such Called Principal, in accordance with accepted financial practice and at a discount factor  (applied on the same periodic basis as that on which interest on the Notes of such Series is payable)  equal to the Reinvestment Yield with respect to such Called Principal.  “Reinvestment Yield” means, with respect to the Called Principal of any Note of any  Series, the sum of (a) 0.50% plus (b) the yield to maturity implied by the “Ask Yield(s)” reported  as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date  with respect to such Called Principal, on the display designated as “Page PX1” (or such other  display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued  actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the  Remaining Average Life of such Called Principal as of such Settlement Date.  If there are no such  U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then  such implied yield to maturity will be determined by (i) converting U.S. Treasury bill quotations  to bond equivalent yields in accordance with accepted financial practice and (ii) interpolating  linearly between the “Ask Yields” Reported for the applicable most recently issued actively traded  on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such  Remaining Average Life and (2) closest to and less than such Remaining Average Life.  The  Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest  rate of the applicable Note of such Series.  If such yields are not Reported or the yields Reported as of such time are not ascertainable  (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called  Principal of any Note of any Series, the sum of (x) 0.50% plus (y) the yield to maturity implied by  the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have  been so reported as of the second Business Day preceding the Settlement Date with respect to such  Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor  publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average  Life of such Called Principal as of such Settlement Date.  If there is no such U.S. Treasury constant  maturity having a term equal to such Remaining Average Life, such implied yield to maturity will  be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so  reported with the term closest to and greater than such Remaining Average Life and (2) the U.S.  Treasury constant maturity so reported with the term closest to and less than such Remaining  Average Life.  The Reinvestment Yield shall be rounded to the number of decimal places as  appears in the interest rate of the applicable Note of such Series.  “Remaining Average Life” means, with respect to any Called Principal of any Series, the  number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products  obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with  respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day  year comprised of twelve 30-day months and calculated to two decimal places, that will elapse  





 






BUSINESS.29029164.3       23    between the Settlement Date with respect to such Called Principal and the scheduled due date of  such Remaining Scheduled Payment.  “Remaining Scheduled Payments” means, with respect to the Called Principal of any  Note of any Series, all payments of such Called Principal and interest thereon that would be due  after the Settlement Date with respect to such Called Principal if no payment of such Called  Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a  date on which interest payments are due to be made under the Notes of such Series, then the amount  of the next succeeding scheduled interest payment will be reduced by the amount of interest  accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to  Section 8.2 or Section 12.1.  “Settlement Date” means, with respect to the Called Principal of any Note of any Series,  the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or  is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.  Section 8.7. Offer of Prepayment Upon Change in Control.   (a) Notice of Change in Control.  The Company will, within 10 Business Days  after any Responsible Officer has knowledge of the occurrence of any Change in Control,  give written notice of such Change in Control to each holder of Notes.  Such notice shall  contain and constitute an offer to prepay Notes as described in clause (b) of this Section  8.7 and shall be accompanied by the certificate described in clause (e) of this Section 8.7.  (b) Offer to Prepay Notes.  The offer to prepay Notes contemplated by clause  (a) of this Section 8.7 shall be an offer to prepay, in accordance with and subject to this  Section 8.7, all, but not less than all, the Notes held by each holder on a date specified in  such offer (the “Proposed Prepayment Date”) which date shall be not less than 30 days  and not more than 60 days after the date of such offer (if the Proposed Prepayment Date  shall not be specified in such offer, the Proposed Prepayment Date shall be the 45th day  after the date of such offer).  (c) Acceptance/Rejection.  A holder of Notes may accept the offer to prepay  made pursuant to this Section 8.7 by causing a notice of such acceptance to be delivered to  the Company at least 15 days prior to the Proposed Prepayment Date.  A failure by a holder  of Notes to respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed  to constitute a rejection of such offer by such holder.  (d) Prepayment.  Prepayment of the Notes to be prepaid pursuant to this  Section 8.7 shall be at 100% of the principal amount of such Notes, together with interest  on such Notes accrued to the date of prepayment but without payment of any Make-Whole  Amount with respect thereto.  The prepayment shall be made on the Proposed Prepayment  Date.  (e) Officer's Certificate.  Each offer to prepay the Notes pursuant to this  Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer  of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment  Date; (ii) that such offer is made pursuant to this Section 8.7; (iii) the principal amount of  





 






BUSINESS.29029164.3       24    each Note offered to be prepaid; (iv) the interest that would be due on each Note offered to  be prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section  8.7 have been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date  of the Change in Control.  Section 8.8. Payments Due on Non-Business Days.  Anything in this Agreement or the  Notes to the contrary notwithstanding, (x) except as set forth in clause (y), any payment of interest  on any Note that is due on a date that is not a Business Day shall be made on the next succeeding  Business Day without including the additional days elapsed in the computation of the interest  payable on such next succeeding Business Day; and (y) any payment of principal of or Make- Whole Amount on any Note (including principal due on the Maturity Date of such Note) that is  due on a date that is not a Business Day shall be made on the next succeeding Business Day and  shall include the additional days elapsed in the computation of interest payable on such next  succeeding Business Day.  SECTION 9. AFFIRMATIVE COVENANTS.    From the date of this Agreement until the Closing and thereafter, so long as any of the  Notes are outstanding, the Company covenants that:  Section 9.1. Compliance with Laws.  Without limiting Section 10.4, the Company will,  and will cause each of the other Company Parties to, comply with all laws, ordinances or  governmental rules or regulations to which each of them is subject (including ERISA,  Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred  to in Section 5.16) and will obtain and maintain in effect all licenses, certificates, permits,  franchises and other governmental authorizations necessary to the ownership of their respective  properties or to the conduct of their respective businesses, in each case to the extent necessary to  ensure that non-compliance with such laws, ordinances or governmental rules or regulations or  failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other  governmental authorizations would not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  Section 9.2. Insurance.  The Company will, and will cause each of the other Company  Parties to, maintain, with financially sound and reputable insurers, insurance with respect to their  respective properties and businesses against such casualties and contingencies, of such types, on  such terms and in such amounts (including deductibles, co-insurance and self-insurance, if  adequate reserves are maintained with respect thereto) as is customary in the case of entities of  established reputations engaged in the same or a similar business and similarly situated.  Section 9.3. Maintenance of Properties.  The Company will, and will cause each of the  other Company Parties to, maintain and keep, or cause to be maintained and kept, their respective  properties in good repair, working order and condition (other than ordinary wear and tear), so that  the business carried on in connection therewith may be properly conducted at all times, provided  that this Section 9.3 shall not prevent the Company or any other Company Party from  discontinuing the operation and the maintenance of any of its properties if such discontinuance is  desirable in the conduct of its business and the Company has concluded that such discontinuance  





 






BUSINESS.29029164.3       25    would not, individually or in the aggregate, reasonably be expected to have a Material Adverse  Effect.  Section 9.4. Payment of Taxes.  The Company will, and will cause each of the other  Company Parties to, file all tax returns required to be filed in any jurisdiction and to pay and  discharge all taxes shown to be due and payable on such returns and all other taxes, assessments,  governmental charges or levies payable by any of them, to the extent the same have become due  and payable and before they have become delinquent, provided that neither the Company nor any  other Company Party need pay any such tax, assessment, charge or levy if (a) the amount,  applicability or validity thereof is contested by the Company or such other Company Party on a  timely basis in good faith and in appropriate proceedings, and the Company or another Company  Party has established adequate reserves therefor in accordance with GAAP on the books of the  Company or such other Company Party or (b) the nonpayment of all such taxes, assessments,  charges and levies would not, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.  Section 9.5. Corporate Existence, Etc.  Subject to Section 10.2, the Company will at  all times preserve and keep its corporate or other legal existence in full force and effect.  Subject  to Sections 10.2, the Company will at all times preserve and keep in full force and effect the  corporate existence of each of the other Company Parties (unless merged into the Company or a  Wholly-Owned Subsidiary) and all rights and franchises of the Company and the other Company  Parties unless, in the good faith judgment of the Company, the termination of or failure to preserve  and keep in full force and effect such corporate or other legal existence, right or franchise would  not, individually or in the aggregate, have a Material Adverse Effect.  Section 9.6. Books and Records.  The Company will, and will cause each of the other  Company Parties to, maintain proper books of record and account in conformity with GAAP and  all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction  over the Company or such other Company Party, as the case may be.  The Company will, and will  cause each of the other Company Parties to, keep books, records and accounts which, in reasonable  detail, accurately reflect all transactions and dispositions of assets.  The Company and the other  Company Parties have devised a system of internal accounting controls sufficient to provide  reasonable assurances that their respective books, records, and accounts accurately reflect all  transactions and dispositions of assets and the Company will, and will cause each of the other  Company Parties to, continue to maintain such system.  Section 9.7. Subsidiary Guarantors.    (a) The Company will cause each of its Subsidiaries that guarantees or  otherwise becomes liable at any time, whether as a borrower or an additional or co- borrower or otherwise, for or in respect of any Indebtedness under any Material Credit  Facility to concurrently therewith:  (i) enter into an agreement in form and substance satisfactory to the  Required Holders providing for the guaranty by such Subsidiary, on a joint and  several basis with all other such Subsidiaries, of (x) the prompt payment in full  when due of all amounts payable by the Company pursuant to the Notes (whether  





 






BUSINESS.29029164.3       26    for principal, interest, Make-Whole Amount or otherwise) and this Agreement,  including all indemnities, fees and expenses payable by the Company thereunder  and (y) the prompt, full and faithful performance, observance and discharge by the  Company of each and every covenant, agreement, undertaking and provision  required pursuant to the Notes or this Agreement to be performed, observed or  discharged by it (a “Subsidiary Guaranty”); and  (ii) solely to the extent provided in connection with a guaranty provided  under any Material Credit Facility, deliver the following to each holder of a Note:  (A) a certificate signed by an authorized responsible officer of  such Subsidiary containing representations and warranties on behalf of such  Subsidiary to the same effect, mutatis mutandis, as those contained in  Sections 5.1(Organization; Power and Authority), 5.2 (Authorization, Etc.),  5.6 (Compliance with Laws, Other Instruments, Etc.), 5.7 (Government  Authorizations, Etc.), 5.8 (Litigation; Observance of Statutes and Orders),  5.9 (Taxes), 5.10 (Title to Property; Leases; Qualified Assets), 5.11  (Licenses, Permits, Etc.), 5.16 (Foreign Assets Control Regulations, Etc.),  5.17 (Status Under Certain Statutes) and 5.19 (Environmental Matters)  of  this Agreement (but with respect to such Subsidiary and such Subsidiary  Guaranty rather than the Company), but solely with respect to those items  required by the applicable Material Credit Facility;  (B) all documents as may be reasonably requested by the  Required Holders to evidence the due organization, continuing existence  and, where applicable, good standing of such Subsidiary and the due  authorization by all requisite action on the part of such Subsidiary of the  execution and delivery of such Subsidiary Guaranty, as applicable, and the  performance by such Subsidiary of its obligations thereunder; and  (C) an opinion of counsel reasonably satisfactory to the Required  Holders covering such matters relating to such Subsidiary and the  Subsidiary Guaranty as the Required Holders may reasonably request.  (b) At the election of the Company and by written notice to each holder of  Notes, any Subsidiary Guarantor may be discharged from all of its obligations and  liabilities under its Subsidiary Guaranty and shall be automatically released from its  obligations thereunder without the need for the execution or delivery of any other document  by the holders, provided that (i) if such Subsidiary Guarantor is a guarantor or is otherwise  liable for or in respect of any Material Credit Facility, then such Subsidiary Guarantor has  been released and discharged (or will be released and discharged concurrently with the  release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Material  Credit Facility, (ii) at the time of, and after giving effect to, such release and discharge, no  Default or Event of Default shall be existing, (iii) no amount is then due and payable under  such Subsidiary Guaranty, (iv) if in connection with such Subsidiary Guarantor being  released and discharged under any Material Credit Facility, any fee or other form of  consideration is given to any holder of Indebtedness under such Material Credit Facility  





 






BUSINESS.29029164.3       27    for such release, the holders of the Notes shall receive equivalent consideration  substantially concurrently therewith and (v) each holder shall have received a certificate of  a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv).    Section 9.8. Maintenance of Separate Account Status.  The Company shall at all times  be maintained as a separate account of TIAA under applicable law such that the assets of the  Company are not subject to the claims of TIAA’s creditors for TIAA’s obligations unrelated to the  Company.  In furtherance thereof, at all times all assets of the Company shall be held separate  from other assets of TIAA that are not for the account of the Company.  If there shall be any  changes of fact or law that may reasonably be expected to cause any change in the Company’s  status as a separate account of TIAA under applicable law, the Company shall deliver to each  holder of Notes an updated opinion of counsel to the Company addressing such changes, in form  and substance reasonably satisfactory to the Required Holders.  Section 9.9. Investment Policies.  The Company shall comply with all investment and  debt restrictions set forth in its organizational documents, except (other than in respect of entering  into this Agreement and the other Financing Documents) where the failure to comply would not  reasonably be expected to have a Material Adverse Effect.  Although it will not be a Default or an Event of Default if the Company fails to comply with any  provision of Section 9 on or after the date of this Agreement and prior to the Closing, if such a  failure occurs, then any of the Purchasers may elect not to purchase the Notes on the date of  Closing that is specified in Section 3.   SECTION 10. NEGATIVE COVENANTS.    From the date of this Agreement until the Closing and thereafter, so long as any of the  Notes are outstanding, the Company covenants that:  Section 10.1. Transactions with Affiliates.  The Company will not, and will not permit  any other Company Party to, enter into directly or indirectly any transaction or group of related  transactions (including the purchase, lease, sale or exchange of properties of any kind or the  rendering of any service) with any Affiliate (other than the Company or another Company Party),  except:   (a) transactions in the ordinary course of business at prices and on terms and  conditions not less favorable than could be obtained on an arm’s length basis from  unrelated third parties;  (b) sales of units in the Company to TIAA in connection with any liquidity  guarantee and any distributions related thereto;  (c) payment or transfers with respect to investment management,  administration, distribution and similar services provided to the Company by any Affiliate  to the extent permitted under the Company’s organizational documents and any prospectus  filed by the Company with the SEC; and  





 






BUSINESS.29029164.3       28    (d) provision of services and payment of fees contemplated by any prospectus  filed by the Company with the SEC.  Section 10.2. Merger, Consolidation, Etc.  The Company will not, and will not permit  any Subsidiary Guarantor to, consolidate with or merge with any other Person or convey, transfer  or lease all or substantially all of its assets in a single transaction or series of transactions to any  Person unless:  (a) in the case of any such transaction involving the Company, the successor  formed by such consolidation or the survivor of such merger or the Person that acquires by  conveyance, transfer or lease all or substantially all of the assets of the Company as an  entirety, as the case may be, shall be a solvent corporation or limited liability company  organized and existing under the laws of the United States or any state thereof (including  the District of Columbia), and, if the Company is not such corporation or limited liability  company, (i) such corporation or limited liability company shall have executed and  delivered to each holder of any Notes its assumption of the due and punctual performance  and observance of each covenant and condition of this Agreement and the Notes and (ii)  such corporation or limited liability company shall have caused to be delivered to each  holder of any Notes an opinion of nationally recognized independent counsel, or other  independent counsel reasonably satisfactory to the Required Holders, to the effect that all  agreements or instruments effecting such assumption are enforceable in accordance with  their terms and comply with the terms hereof;  (b) in the case of any such transaction involving a Subsidiary Guarantor, the  successor formed by such consolidation or the survivor of such merger or the Person that  acquires by conveyance, transfer or lease all or substantially all of the assets of such  Subsidiary Guarantor as an entirety, as the case may be, shall be (1) the Company, such  Subsidiary Guarantor or another Subsidiary Guarantor; or (2) a solvent corporation or  limited liability company (other than the Company or another Subsidiary Guarantor) that  is organized and existing under the laws of the United States or any state thereof (including  the District of Columbia) and, if such Subsidiary Guarantor is not such corporation or  limited liability company, (A) such corporation or limited liability company shall have  executed and delivered to each holder of Notes its assumption of the due and punctual  performance and observance of each covenant and condition of the Subsidiary Guaranty of  such Subsidiary Guarantor and (B) the Company shall have caused to be delivered to each  holder of Notes an opinion of nationally recognized independent counsel, or other  independent counsel reasonably satisfactory to the Required Holders, to the effect that all  agreements or instruments effecting such assumption are enforceable in accordance with  their terms and comply with the terms hereof;  (c) in the case of the sale, transfer or other disposition of the equity interests  of any Subsidiary Guarantor, all of such equity interests are acquired by another Obligor;  (d) in the case of liquidation or dissolution of any Subsidiary Guarantor, any  and all of the assets of such Subsidiary Guarantor are distributed or otherwise transferred  to another Obligor in connection with such liquidation or dissolution;  





 






BUSINESS.29029164.3       29    (e) each Subsidiary Guarantor under any Subsidiary Guaranty that is  outstanding at the time such transaction or each transaction in such a series of transactions  occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time  pursuant to documentation that is reasonably acceptable to the Required Holders; and  (f) at the time of signing the definitive transaction agreement for such  transaction or each transaction in any such series of transactions, no Default or Event of  Default shall have occurred and be continuing.  No such conveyance, transfer or lease of substantially all of the assets of the Company or any  Subsidiary Guarantor shall have the effect of releasing the Company or such Subsidiary Guarantor,  as the case may be, or any successor corporation or limited liability company that shall theretofore  have become such in the manner prescribed in this Section 10.2, from its liability under (x) this  Agreement or the Notes (in the case of the Company) or (y) the Subsidiary Guaranty (in the case  of any Subsidiary Guarantor), unless, in the case of the conveyance, transfer or lease of  substantially all of the assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released  from its Subsidiary Guaranty in accordance with Section 9.7(b) in connection with or immediately  following such conveyance, transfer or lease.  Section 10.3. Line of Business.  The Company will not and will not permit any other  Company Party to engage in any business if, as a result, the general nature of the business in which  the Company and the other Company Parties, taken as a whole, would then be engaged would be  substantially changed from the general nature of the business in which the Company and the other  Company Parties, taken as a whole, are engaged on the date of this Agreement as described in the  Disclosure Documents.  Section 10.4. Economic Sanctions, Etc.  The Company will not, and will not permit any  Controlled Entity to (a) become (including by virtue of being owned or controlled by a Blocked  Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or  engage in any dealing or transaction (including any investment, dealing or transaction involving  the proceeds of the Notes) with any Person if such investment, dealing or transaction (i) would  cause any Purchaser or holder or any affiliate of such Purchaser or holder to be in violation of, or  subject to sanctions under, any law or regulation applicable to such holder, or (ii) is prohibited by  or subject to sanctions under any U.S. Economic Sanctions Laws.  Section 10.5. Liens.  The Company will not, and will not permit any other Company Party  to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a  contingency or otherwise) any Lien on or with respect to any property or asset (including any  document or instrument in respect of goods or accounts receivable) of the Company or any such  other Company Party, whether now owned or held or hereafter acquired, or any income or profits  therefrom, or assign or otherwise convey any right to receive income or profits, except for  Permitted Liens; provided, that notwithstanding the foregoing, the Company shall not, and shall  not permit any other Company Party to, secure any Indebtedness outstanding under or pursuant to  any Material Credit Facility unless and until the Notes (and any guaranty delivered in connection  therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to  documentation reasonably acceptable to the Required Holders in substance and in form, including  an intercreditor agreement and opinions of counsel to the Company and/or any such other  





 






BUSINESS.29029164.3       30    Company Party, as the case may be, from counsel that is reasonably acceptable to the Required  Holders.  Section 10.6. Financial Covenants.    (a) Maximum Total Leverage Ratio.  The Company will not permit the Total  Leverage Ratio to exceed 50% as of the last day of any fiscal quarter of the Company.  (b) Fixed Charges Ratio.  The Company will not permit the Fixed Charges  Ratio to be less than 2.00 to 1.00 as of the last day of any fiscal quarter of the Company.  (c) Unencumbered Leverage Ratio.  The Company will not permit the  Unencumbered Leverage Ratio to exceed 50% as of the last day of any fiscal quarter of the  Company.  (d) Minimum Unsecured Interest Coverage Ratio.  The Company will not  permit the Unsecured Interest Coverage Ratio to be less than 2.00 to 1.00 as of the last day  of any fiscal quarter of the Company.  (e) Maximum Secured Debt.  The Company will not, and will not permit any  other Company Party to, directly or indirectly, create, incur, assume or otherwise become  directly or indirectly liable with respect to any Secured Indebtedness if the Total Secured  Outstanding Indebtedness to Total Asset Value would exceed 40% at the time of such  creation, incurrence or assumption.  Section 10.7. Modifications of Certain Documents.  Without the prior written consent  of Required Holders, the Company will not, and will not permit, any other Person to, modify any  of the terms or provisions in its organizational documents, except: (a) any modifications necessary  for the Company to issue more equity interests (provided such issuance does not otherwise violate  the terms of this Agreement); or (b) modifications necessary to clarify existing provisions of such  organizational documents; or (c) modifications which would have no adverse, substantive effect  on the rights or interests of the holders in conjunction with the Notes or under the Financing  Documents; or (d) modifications which would not reasonably be expected to have a Material  Adverse Effect.  Although it will not be a Default or an Event of Default if the Company fails to comply with any  provision of Section 10 before or after giving effect to the issuance of the Notes on a pro forma  basis, if such a failure occurs, then any of the Purchasers may elect not to purchase the Notes on  the date of Closing that is specified in Section 3.    SECTION 11. EVENTS OF DEFAULT.    An “Event of Default” shall exist if any of the following conditions or events shall occur  and be continuing:  (a) the Company defaults in the payment of any principal or Make-Whole  Amount, if any, on any Note when the same becomes due and payable, whether at maturity  or at a date fixed for prepayment or by declaration or otherwise; or  





 






BUSINESS.29029164.3       31    (b) the Company defaults in the payment of any interest on any Note for more  than five Business Days after the same becomes due and payable; or  (c) the Company defaults in the performance of or compliance with any term  contained in Section 7.1(d) or Section 10; or  (d) the Company or any Subsidiary Guarantor defaults in the performance of  or compliance with any term contained herein (other than those referred to in  Sections 11(a), (b) and (c)) or in any other Financing Document and such default is not  remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual  knowledge of such default and (ii) the Company receiving written notice of such default  from any holder of a Note (any such written notice to be identified as a “notice of default”  and to refer specifically to this Section 11(d)); or  (e) (i) any representation or warranty made in writing by or on behalf of the  Company or by any officer of the Company in any Financing Document or any writing  furnished in connection with the transactions contemplated hereby proves to have been  false or incorrect in any material respect on the date as of which made, or (ii) any  representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or  by any officer of such Subsidiary Guarantor in any Financing Document or any writing  furnished in connection with such Financing Document proves to have been false or  incorrect in any material respect on the date as of which made; or  (f) (i) the Company or any Significant Subsidiary is in default (as principal or  as guarantor or other surety) in the payment of any principal of or premium or make-whole  amount or interest on any Indebtedness that is outstanding in an aggregate principal amount  of at least $100,000,000 (or its equivalent in the relevant currency of payment) beyond any  period of grace provided with respect thereto, or (ii) the Company or any Significant  Subsidiary is in default in the performance of or compliance with any term of any evidence  of any Indebtedness in an aggregate outstanding principal amount of at least $100,000,000  (or its equivalent in the relevant currency of payment) or of any mortgage, indenture or  other agreement relating thereto or any other condition exists, and as a consequence of such  default or condition, such Indebtedness has become or has been declared due and payable  before its stated maturity or before its regularly scheduled dates of payment; or  (g) the Company, TIAA or any Significant Subsidiary (i) is generally not  paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or  consents by answer or otherwise to the filing against it of, a petition for relief or  reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take  advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law  of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents  to the appointment of a custodian, receiver, trustee or other officer with similar powers  with respect to it or with respect to any substantial part of its property, (v) is adjudicated  as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the  foregoing; or  





 






BUSINESS.29029164.3       32    (h) a court or other Governmental Authority of competent jurisdiction enters  an order appointing, without consent by the Company, TIAA or any of its Significant  Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect  to it or with respect to any substantial part of its property, or constituting an order for relief  or approving a petition for relief or reorganization or any other petition in bankruptcy or  for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction,  or ordering the dissolution, winding-up or liquidation of the Company, TIAA or any of its  Significant Subsidiaries, or any such petition shall be filed against the Company or any of  its Significant Subsidiaries and such petition shall not be dismissed within 60 days; or  (i) any event occurs with respect to the Company, TIAA or any Significant  Subsidiary which under the laws of any jurisdiction is analogous to any of the events  described in Section 11(g) or Section 11(h), provided that the applicable grace period, if  any, which shall apply shall be the one applicable to the relevant proceeding which most  closely corresponds to the proceeding described in Section 11(g) or Section 11(h); or  (j) one or more final judgments or orders for the payment of money  aggregating in excess of $100,000,000 (or its equivalent in the relevant currency of  payment) (to the extent not covered by independent third-party insurance or enforceable  indemnity as to which the insurer does not deny coverage), including any such final order  enforcing a binding arbitration decision, are rendered against one or more of the Company  and its Significant Subsidiaries and which judgments are not, within 60 days after entry  thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days  after the expiration of such stay; or  (k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA  or the Code for any plan year or part thereof or a waiver of such standards or extension of  any amortization period is sought or granted under section 412 of the Code, (ii) a notice of  intent to terminate any Plan shall have been or is reasonably expected to be filed with the  PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to  terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the  Company or any ERISA Affiliate that a Plan may become a subject of any such  proceedings, (iii) there is any “amount of unfunded benefit liabilities” (within the meaning  of section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with  Title IV of ERISA, (iv) the aggregate present value of accrued benefit liabilities under all  funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S.  Plans allocable to such liabilities, (v) the Company or any ERISA Affiliate shall have  incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA  or the penalty or excise tax provisions of the Code relating to employee benefit plans,  (vi) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan,  (vii) the Company or any Subsidiary establishes or amends any employee welfare benefit  plan that provides post-employment welfare benefits in a manner that would increase the  liability of the Company or any Subsidiary thereunder, (viii) the Company or any  Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the  requirements of any and all applicable laws, statutes, rules, regulations or court orders or  any Non-U.S. Plan is involuntarily terminated or wound up, or (ix) the Company or any  Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose  





 






BUSINESS.29029164.3       33    shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise)  with respect to one or more Non-U.S. Plans; and any such event or events described in  clauses (i) through (ix) above, either individually or together with any other such event or  events, would reasonably be expected to have a Material Adverse Effect.  As used in this  Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan”  shall have the respective meanings assigned to such terms in section 3 of ERISA;   (l) any Financing Document shall cease to be in full force and effect, any  Obligor or any Person acting on behalf of any Obligor shall contest in any manner the  validity, binding nature or enforceability of any Financing Document, or the obligations of  any Obligor under any Financing Document are not or cease to be legal, valid, binding and  enforceable in accordance with the terms of such Financing Document; or  (m) any event shall occur which gives rise to a nonexempt prohibited  transaction (as such term is defined in section 4975 of the Code or section 406 of ERISA)  involving any benefit plan investor (as such term is defined in the Plan Asset Regulation)  that is the Company or an investor or partner in the Company, other than an event arising  from a breach of any Financing Document by the holders, that could reasonably be  expected to subject the holders, on account of any Note or any other transaction  contemplated by the Financing Documents, to any tax or penalty on prohibited transactions  imposed under section 4975 of the Code or section 502(i) of ERISA.   SECTION 12. REMEDIES ON DEFAULT, ETC.    Section 12.1. Acceleration.    (a) If an Event of Default with respect to any Obligor or TIAA described in  Section 11(g), (h) or (i) (other than an Event of Default described in clause (i) of Section  11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause  encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall  automatically become immediately due and payable.  (b) If any other Event of Default has occurred and is continuing, the Required  Holders may at any time at its or their option, by notice or notices to the Company, declare  all the Notes then outstanding to be immediately due and payable.  (c) If any Event of Default described in Section 11(a) or (b) has occurred and  is continuing, any holder or holders of Notes at the time outstanding affected by such Event  of Default may at any time, at its or their option, by notice or notices to the Company,  declare all the Notes held by it or them to be immediately due and payable.  Upon any Notes becoming due and payable under this Section 12.1, whether automatically  or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such  Notes, plus (x) all accrued and unpaid interest thereon (including interest accrued thereon in  respect of any Series of Notes at the Default Rate for such Series, if applicable) and (y) the Make- Whole Amount determined in respect of such principal amount, shall all be immediately due and  payable, in each and every case without presentment, demand, protest or further notice, all of  which are hereby waived.  The Company acknowledges, and the parties hereto agree, that each  





 






BUSINESS.29029164.3       34    holder of a Note has the right to maintain its investment in the Notes free from repayment by the  Company (except as herein specifically provided for) and that the provision for payment of a  Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated  as a result of an Event of Default, is intended to provide compensation for the deprivation of such  right under such circumstances.  Section 12.2. Other Remedies.  If any Default or Event of Default has occurred and is  continuing, and irrespective of whether any Notes have become or have been declared immediately  due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed  to protect and enforce the rights of such holder by an action at law, suit in equity or other  appropriate proceeding, whether for the specific performance of any agreement contained herein  or in any Note or in any other Financing Document, or for an injunction against a violation of any  of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or  by law or otherwise.  Section 12.3. Rescission.  At any time after any Notes have been declared due and  payable pursuant to Section 12.1(b) or (c), the Required Holders, by written notice to the Company,  may rescind and annul any such declaration and its consequences if (a) the Company has paid all  overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that  are due and payable and are unpaid other than by reason of such declaration, and all interest on  such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable  law) any overdue interest in respect of the Notes of any Series, at the applicable Default Rate for  such Series of Notes, (b) neither the Company nor any other Person shall have paid any amounts  which have become due solely by reason of such declaration, (c) all Events of Default and  Defaults, other than non-payment of amounts that have become due solely by reason of such  declaration, have been cured or have been waived pursuant to Section 17, and (d) no judgment or  decree has been entered for the payment of any monies due pursuant hereto or to the Notes.  No  rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of  Default or Default or impair any right consequent thereon.  Section 12.4. No Waivers or Election of Remedies, Expenses, Etc.  No course of  dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy  shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies.   No right, power or remedy conferred by this Agreement or any other Financing Document upon  any holder thereof shall be exclusive of any other right, power or remedy referred to herein or  therein or now or hereafter available at law, in equity, by statute or otherwise.  Without limiting  the obligations of the Company under Section 15, the Company will pay to the holder of each Note  on demand such further amount as shall be sufficient to cover all reasonable and documented out- of-pocket costs and expenses of such holder incurred in any enforcement or collection under this  Section 12, including reasonable and documented out-of-pocket attorneys’ fees, expenses and  disbursement of one special counsel for, collectively, the holders of Notes.   SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.    Section 13.1. Registration of Notes.  The Company shall keep at its principal executive  office a register for the registration and registration of transfers of Notes.  The name and address  of each holder of one or more Notes, each transfer thereof and the name and address of each  





 






BUSINESS.29029164.3       35    transferee of one or more Notes shall be registered in such register.  If any holder of one or more  Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes  shall also be registered in such register as an owner and holder thereof and (b) at any such  beneficial owner’s option, either such beneficial owner or its nominee may execute any  amendment, waiver or consent pursuant to this Agreement.  Prior to due presentment for  registration of transfer, the Person in whose name any Note shall be registered shall be deemed  and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be  affected by any notice or knowledge to the contrary.  The Company shall give to any holder of a  Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy  of the names and addresses of all registered holders of Notes.  Section 13.2. Transfer and Exchange of Notes.  Upon surrender of any Note to the  Company at the address and to the attention of the designated officer (all as specified in  Section 18(iii)), for registration of transfer or exchange (and in the case of a surrender for  registration of transfer accompanied by a written instrument of transfer duly executed by the  registered holder of such Note or such holder’s attorney duly authorized in writing and  accompanied by the relevant name, address and other information for notices of each transferee of  such Note or part thereof), within 10 Business Days thereafter, the Company shall execute and  deliver, at the Company’s expense (except as provided below), one or more new Notes of the same  Series (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount  equal to the unpaid principal amount of the surrendered Note.  Each such new Note shall be payable  to such Person as such holder may request and shall be substantially in the form of such Note for  such Series as set forth in Schedule 1.1 or Schedule 1.2 as applicable.  Each such new Note shall  be dated and bear interest from the date to which interest shall have been paid on the surrendered  Note or dated the date of the surrendered Note if no interest shall have been paid thereon.  The  Company may require payment of a sum sufficient to cover any stamp tax or governmental charge  imposed in respect of any such transfer of Notes.  Notes shall not be transferred in denominations  of less than $100,000, provided that if necessary to enable the registration of transfer by a holder  of its entire holding of Notes of a Series, one Note of such Series may be in a denomination of less  than $100,000.  Any transferee, by its acceptance of a Note registered in its name (or the name of  its nominee), shall be deemed to have made the representation set forth in Section 6.2.    Section 13.3. Replacement of Notes.  Upon receipt by the Company at the address and  to the attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably  satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note  (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional  Investor of such ownership and such loss, theft, destruction or mutilation), and  (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory  to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser  or another holder of a Note with a minimum net worth of at least $50,000,000 or a Qualified  Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed  to be satisfactory), or  (b) in the case of mutilation, upon surrender and cancellation thereof,  





 






BUSINESS.29029164.3       36    within 10 Business Days thereafter, the Company at its own expense shall execute and deliver, in  lieu thereof, a new Note of the same Series, dated and bearing interest from the date to which  interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of  such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.  SECTION 14. PAYMENTS ON NOTES.    Section 14.1. Place of Payment.  Subject to Section 14.2, payments of principal, Make- Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New  York, New York at the principal office of JPMorgan Chase Bank, N.A. in such jurisdiction.  The  Company may at any time, by notice to each holder of a Note, change the place of payment of the  Notes so long as such place of payment shall be either the principal office of the Company in such  jurisdiction or the principal office of a bank or trust company in such jurisdiction.  Section 14.2. Payment by Wire Transfer.  So long as any Purchaser or its nominee shall  be the holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note  to the contrary, the Company will pay all sums becoming due on such Note for principal, Make- Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and  at the address specified for such purpose below such Purchaser’s name in the Purchaser Schedule,  or by such other method or at such other address as such Purchaser shall have from time to time  specified to the Company in writing for such purpose, without the presentation or surrender of  such Note or the making of any notation thereon, except that upon written request of the Company  made concurrently with or reasonably promptly after payment or prepayment in full of any Note,  such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such  request, to the Company at its principal executive office or at the place of payment most recently  designated by the Company pursuant to Section 14.1.  Prior to any sale or other disposition of any  Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon  the amount of principal paid thereon and the last date to which interest has been paid thereon or  surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section  14.2.  The Company will afford the benefits of this Section 14.2 to any Institutional Investor that  is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and  that has made the same agreement relating to such Note as the Purchasers have made in this Section  14.2.  Section 14.3. FATCA Information.  By acceptance of any Note, the holder of such Note  agrees that such holder will with reasonable promptness duly complete and deliver to the  Company, or to such other Person as may be reasonably requested by the Company, from time to  time (a) in the case of any such holder that is a United States Person, such holder’s United States  tax identification number or other Forms reasonably requested by the Company necessary to  establish such holder’s status as a United States Person under FATCA and as may otherwise be  necessary for the Company to comply with its obligations under FATCA and (b) in the case of any  such holder that is not a United States Person, such documentation prescribed by applicable law  (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional  documentation as may be necessary for the Company to comply with its obligations under FATCA  and to determine that such holder has complied with such holder’s obligations under FATCA or  to determine the amount (if any) to deduct and withhold from any such payment made to such  holder.  Nothing in this Section 14.3 shall require any holder to provide information that is  





 






BUSINESS.29029164.3       37    confidential or proprietary to such holder unless the Company is required to obtain such  information under FATCA and, in such event, the Company shall treat any such information it  receives as confidential.  SECTION 15. EXPENSES, ETC.    Section 15.1. Transaction Expenses.  Whether or not the transactions contemplated  hereby are consummated, the Company will pay all reasonable and documented out-of-pocket  costs and expenses (but limited, in the case of attorneys’ fees and expenses, to the reasonable and  documented out-of-pocket attorneys’ fees of one special counsel for, collectively, the Purchasers  and each other holder of a Note, taken as a whole, and, if reasonably required by the Required  Holders, one local counsel in each applicable jurisdiction for all such holders, taken as a whole)  incurred by the Purchasers and each other holder of a Note in connection with such transactions  and in connection with any amendments, waivers or consents under or in respect of this Agreement  or any other Financing Document (whether or not such amendment, waiver or consent becomes  effective), including: (a) the costs and expenses incurred in enforcing or defending (or determining  whether or how to enforce or defend) any rights under this Agreement any other Financing  Document or in responding to any subpoena or other legal process or informal investigative  demand issued in connection with this Agreement any other Financing Document, or by reason of  being a holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred  in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in  connection with any work-out or restructuring of the transactions contemplated hereby and by the  other Financing Documents and (c) the costs and expenses incurred in connection with the initial  filing of this Agreement and all related documents and financial information with the SVO  provided, that such costs and expenses under this clause (c) shall not exceed $6,725.  If required  by the NAIC, the Company shall obtain and maintain at its own cost and expense a Legal Entity  Identifier (LEI).  The Company will pay, and will save each Purchaser and each other holder of a Note  harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders  (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of  the Notes), (ii) any and all wire transfer fees that any bank or other financial institution deducts  from any payment under such Note to such holder or otherwise charges to a holder of a Note with  respect to a payment under such Note and (iii) any judgment, liability, claim, order, decree, fine,  penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation  resulting from the consummation of the transactions contemplated hereby, including the use of the  proceeds of the Notes by the Company, in each case, other than to the extent arising from (x) the  bad faith, gross negligence or willful misconduct by such Purchaser or such holder of a Note as  determined in a final non-appealable judgment from a court of competent jurisdiction or (y) a claim  between any Purchaser or holder of a Note, on the one hand, and any other Purchaser or holder of  a Note, on the other hand (other than claims arising out of any act or omission by the Company  and/or its Affiliates).    Section 15.2. Certain Taxes.  The Company agrees to pay all stamp, documentary or  similar taxes or fees which may be payable in respect of the execution and delivery or the  enforcement of this Agreement or any other Financing Document or the execution and delivery  (but not the transfer) or the enforcement of any of the Notes in the United States or any other  





 






BUSINESS.29029164.3       38    jurisdiction where the Company or any Subsidiary Guarantor has assets or of any amendment of,  or waiver or consent under or with respect to, this Agreement or any other Financing Document,  and to pay any value added tax due and payable in respect of reimbursement of costs and expenses  by the Company pursuant to this Section 15, and will save each holder of a Note to the extent  permitted by applicable law harmless against any loss or liability resulting from nonpayment or  delay in payment of any such tax or fee required to be paid by the Company hereunder.  Section 15.3. Survival.  The obligations of the Company under this Section 15 will  survive the payment or transfer of any Note, the enforcement, amendment or waiver of any  provision of this Agreement or any other Financing Document, and the termination of this  Agreement.  SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE  AGREEMENT.    All representations and warranties contained herein shall survive the execution and  delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note  or portion thereof or interest therein and the payment of any Note, and may be relied upon by any  subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of  such Purchaser or any other holder of a Note.  All statements contained in any certificate or other  instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed  representations and warranties of the Company under this Agreement.  Subject to the preceding  sentence, this Agreement and each other Financing Document embody the entire agreement and  understanding between each Purchaser and each Obligor and supersede all prior agreements and  understandings relating to the subject matter hereof.  SECTION 17. AMENDMENT AND WAIVER.    Section 17.1. Requirements.  This Agreement and the Notes may be amended, and the  observance of any term hereof or of the Notes may be waived (either retroactively or  prospectively), only with the written consent of the Company and the Required Holders, except  that:  (a) no amendment or waiver of any of Sections 1, 2, 3, 4, 5, 6 or 21 hereof, or  any defined term (as it is used therein), will be effective as to any Purchaser unless  consented to by such Purchaser in writing; and  (b) no amendment or waiver may, without the written consent of each  Purchaser and the holder of each Note at the time outstanding, (i) subject to Section 12  relating to acceleration or rescission, change the amount or time of any prepayment or  payment of principal of, or reduce the rate or change the time of payment or method of  computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the  percentage of the principal amount of the Notes the holders of which are required to consent  to any amendment or waiver or the principal amount of the Notes that the Purchasers are  to purchase pursuant to Section 2 upon the satisfaction of the conditions to Closing that  appear in Section 4, or (iii) amend any of Sections 8 (except as set forth in the second  sentence of Section 8.2), 11(a), 11(b), 12, 17 or 20.  





 






BUSINESS.29029164.3       39    Section 17.2. Solicitation of Holders of Notes.    (a) Solicitation.  The Company will provide each Purchaser and each holder  of a Note with sufficient information, sufficiently far in advance of the date a decision is  required, to enable such Purchaser and such holder to make an informed and considered  decision with respect to any proposed amendment, waiver or consent in respect of any of  the provisions hereof or of the Notes or any other Financing Document.  The Company  will deliver executed or true and correct copies of each amendment, waiver or consent  effected pursuant to this Section 17 or any other Financing Document to each Purchaser  and each holder of a Note promptly following the date on which it is executed and delivered  by, or receives the consent or approval of, the requisite Purchasers or holders of Notes.  (b) Payment.  The Company will not directly or indirectly pay or cause to be  paid any remuneration, whether by way of supplemental or additional interest, fee or  otherwise, or grant any security or provide other credit support, to any Purchaser or holder  of a Note as consideration for or as an inducement to the entering into by such Purchaser  or holder of any waiver or amendment of any of the terms and provisions hereof or of any  other Financing Document or any Note unless such remuneration is concurrently paid, or  security is concurrently granted or other credit support concurrently provided, on the same  terms, ratably to each Purchaser and each holder of a Note even if such Purchaser or holder  did not consent to such waiver or amendment.  (c) Consent in Contemplation of Transfer.  Any consent given pursuant to this  Section 17 or any other Financing Document by a holder of a Note that has transferred or  has agreed to transfer its Note to (i) the Company, (ii) any Subsidiary or any other Affiliate  or (iii) any other Person in connection with, or in anticipation of, such other Person  acquiring, making a tender offer for or merging with the Company and/or any of its  Affiliates, in each case in connection with such consent, shall be void and of no force or  effect except solely as to such holder, and any amendments effected or waivers granted or  to be effected or granted that would not have been or would not be so effected or granted  but for such consent (and the consents of all other holders of Notes that were acquired  under the same or similar conditions) shall be void and of no force or effect except solely  as to such holder.  Section 17.3. Binding Effect, Etc.  Any amendment or waiver consented to as provided  in this Section 17 or any other Financing Document applies equally to all Purchasers and holders  of Notes and is binding upon them and upon each future holder of any Note and upon the Company  without regard to whether such Note has been marked to indicate such amendment or waiver.  No  such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default  or Event of Default not expressly amended or waived or impair any right consequent thereon.  No  course of dealing between the Company and any Purchaser or holder of a Note and no delay in  exercising any rights hereunder or under any Note or any other Financing Document shall operate  as a waiver of any rights of any Purchaser or holder of such Note.  Section 17.4. Notes Held by Company, Etc.  Solely for the purpose of determining  whether the holders of the requisite percentage of the aggregate principal amount of Notes then  outstanding approved or consented to any amendment, waiver or consent to be given under this  





 






BUSINESS.29029164.3       40    Agreement or any other Financing Document, or have directed the taking of any action provided  herein or in any other Financing Document to be taken upon the direction of the holders of a  specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly  or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.  SECTION 18. NOTICES.    Except to the extent otherwise provided in Section 7.4, all notices and communications  provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day  sends a confirming copy of such notice by an internationally recognized overnight delivery service  (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage  prepaid), or (c) by an internationally recognized overnight delivery service (charges prepaid).  Any  such notice must be sent:  (i) if to any Purchaser or its nominee, to such Purchaser or nominee at  the address specified for such communications in the Purchaser Schedule, or at such  other address as such Purchaser or nominee shall have specified to the Company in  writing,  (ii) if to any other holder of any Note, to such holder at such address as  such other holder shall have specified to the Company in writing, or  (iii) if to the Company, to the Company at its address set forth at the  beginning hereof to the attention of Mark Kaltenborn and Arman Boroumand, or at  such other address as the Company shall have specified to the holder of each Note  in writing.  Notices under this Section 18 will be deemed given only when actually received.  Notwithstanding  anything to the contrary contained herein, any notice to be given by the Company (other than an  Officer’s Certificate) shall be prepared by the Company and may be delivered by an agent or sub- agent of the Company.  SECTION 19. REPRODUCTION OF DOCUMENTS.    This Agreement and all documents relating thereto, including (a) consents, waivers and  modifications that may hereafter be executed, (b) documents received by any Purchaser at the  Closing (except the Notes themselves), and (c) financial statements, certificates and other  information previously or hereafter furnished to any Purchaser, may be reproduced by such  Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such  Purchaser may destroy any original document so reproduced.  The Company agrees and stipulates  that, to the extent permitted by applicable law, any such reproduction shall be admissible in  evidence as the original itself in any judicial or administrative proceeding (whether or not the  original is in existence and whether or not such reproduction was made by such Purchaser in the  regular course of business) and any enlargement, facsimile or further reproduction of such  reproduction shall likewise be admissible in evidence.  This Section 19 shall not prohibit the  Company or any other holder of Notes from contesting any such reproduction to the same extent  that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of  any such reproduction.  





 






BUSINESS.29029164.3       41    SECTION 20. CONFIDENTIAL INFORMATION.    For the purposes of this Section 20, “Confidential Information” means information  delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with  the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in  nature and that was clearly marked or labeled or otherwise adequately identified when received by  such Purchaser as being confidential information of the Company or such Subsidiary, provided  that such term does not include information that (a) was publicly known or otherwise known to  such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known  through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c)  otherwise becomes known to such Purchaser other than through disclosure by the Company or any  Subsidiary or (d) constitutes financial statements delivered to such Purchaser under Section 7.1  that are otherwise publicly available.  Each Purchaser will maintain the confidentiality of such  Confidential Information in accordance with procedures adopted by such Purchaser in good faith  to protect confidential information of third parties delivered to such Purchaser, provided that such  Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees,  agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the  administration of the investment represented by its Notes), (ii) its auditors, financial advisors and  other professional advisors who agree to hold confidential the Confidential Information  substantially in accordance with this Section 20, (iii) any other holder of any Note, (iv) any  Institutional Investor to which it sells or offers to sell such Note or any part thereof or any  participation therein (if such Person has agreed in writing prior to its receipt of such Confidential  Information to be bound by this Section 20), (v) any Person from which it offers to purchase any  Security of the Company (if such Person has agreed in writing prior to its receipt of such  Confidential Information to be bound by this Section 20), (vi) any federal or state regulatory  authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any  similar organization, or any nationally recognized rating agency that requires access to information  about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or  disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation  or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y)  in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default  has occurred and is continuing, to the extent such Purchaser may reasonably determine such  delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of  the rights and remedies under such Purchaser’s Notes, this Agreement or any other Financing  Document.  Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to  be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this  Agreement.  On reasonable request by the Company in connection with the delivery to any holder  of a Note of information required to be delivered to such holder under this Agreement or requested  by such holder (other than a holder that is a party to this Agreement or its nominee), such holder  will enter into an agreement with the Company embodying this Section 20.  In the event that as a condition to receiving access to information relating to the Company  or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to  this Agreement or any other Financing Document any Purchaser or holder of a Note is required to  agree to a confidentiality undertaking (whether through Intralinks, another secure website, a secure  virtual workspace or otherwise) which is different from this Section 20, this Section 20 shall not  





 






BUSINESS.29029164.3       42    be amended thereby and, as between such Purchaser or such holder and the Company, this Section  20 shall supersede any such other confidentiality undertaking.  SECTION 21. SUBSTITUTION OF PURCHASER.    Each Purchaser shall have the right to substitute any one of its Affiliates or another  Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the  purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company,  which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain  such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a  confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations  set forth in Section 6.  Upon receipt of such notice, any reference to such Purchaser in this  Agreement (other than in this Section 21), shall be deemed to refer to such Substitute Purchaser in  lieu of such original Purchaser.  In the event that such Substitute Purchaser is so substituted as a  Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser  all of the Notes then held by such Substitute Purchaser, upon receipt by the Company of notice of  such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other  than in this Section 21), shall no longer be deemed to refer to such Substitute Purchaser, but shall  refer to such original Purchaser, and such original Purchaser shall again have all the rights of an  original holder of the Notes under this Agreement.  SECTION 22. MISCELLANEOUS.    Section 22.1. Successors and Assigns.  All covenants and other agreements contained in  this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their  respective successors and assigns (including any subsequent holder of a Note) whether so  expressed or not, except that, subject to Section 10.2, the Company may not assign or otherwise  transfer any of its rights or obligations hereunder, under the Notes or under any other Financing  Document without the prior written consent of each holder.  Nothing in this Agreement, expressed  or implied, shall be construed to confer upon any Person (other than the parties hereto and their  respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim  under or by reason of this Agreement.  Section 22.2. Accounting Terms.  All accounting terms used herein which are not  expressly defined in this Agreement have the meanings respectively given to them in accordance  with GAAP.  Except as otherwise specifically provided herein, (i) all computations made pursuant  to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall  be prepared in accordance with GAAP.  For purposes of determining compliance with this  Agreement (including Section 9, Section 10 and the definition of “Indebtedness”), any election by  the Company to measure any financial liability using fair value (as permitted by Financial  Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25 – Fair  Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and  Measurement or any similar accounting standard) shall be disregarded and such determination  shall be made as if such election had not been made.  Section 22.3. Severability.  Any provision of this Agreement that is prohibited or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  





 






BUSINESS.29029164.3       43    prohibition or unenforceability without invalidating the remaining provisions hereof, and any such  prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not  invalidate or render unenforceable such provision in any other jurisdiction.  Section 22.4. Construction, Etc.  Each covenant contained herein shall be construed  (absent express provision to the contrary) as being independent of each other covenant contained  herein, so that compliance with any one covenant shall not (absent such an express contrary  provision) be deemed to excuse compliance with any other covenant.  Where any provision herein  refers to action to be taken by any Person, or which such Person is prohibited from taking, such  provision shall be applicable whether such action is taken directly or indirectly by such Person.  Defined terms herein shall apply equally to the singular and plural forms of the terms  defined.  Whenever the context may require, any pronoun shall include the corresponding  masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be  deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to  have the same meaning and effect as the word “shall.”  Unless the context requires otherwise  (a) any definition of or reference to any agreement, instrument or other document herein shall be  construed as referring to such agreement, instrument or other document as from time to time  amended, restated, supplemented or otherwise modified (subject to any restrictions on such  amendments, restatements, supplements or modifications set forth herein) and, for purposes of the  Notes, shall also include any such notes issued in substitution therefor pursuant to Section 13,  (b) subject to Section 22.1, any reference herein to any Person shall be construed to include such  Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of  similar import, shall be construed to refer to this Agreement in its entirety and not to any particular  provision hereof, (d) all references herein to Sections and Schedules shall be construed to refer to  Sections of, and Schedules to, this Agreement, and (e) any reference to any law or regulation herein  shall, unless otherwise specified, refer to such law or regulation as amended, modified or  supplemented from time to time.  Section 22.5. Counterparts; Electronic Signatures.  This Agreement may be executed  in any number of counterparts, each of which shall be an original but all of which together shall  constitute one instrument.  Each counterpart may consist of a number of copies hereof, each signed  by less than all, but together signed by all, of the parties hereto. The words “execution,” “signed,”  “signature,” “delivery,” and words of like import in or relating to this Agreement or any document  to be signed in connection with this Agreement and the other Financing Documents (other than  with respect to the Notes) shall be deemed to include electronic signatures, deliveries or the  keeping of records in electronic form, each of which shall be of the same legal effect, validity or  enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be, to the extent and as provided for in any applicable  law, including the federal Electronic Signatures in Global and National Commerce Act, the New  York State Electronic Signatures and Records Act, or any other state laws based on the Uniform  Electronic Transactions Act, and the parties hereto consent to conduct the transactions  contemplated hereunder by electronic means.  Notwithstanding the foregoing, if any holder of a  Note shall request manually signed counterpart signatures this Agreement or any Financing  Document, the Company hereby agrees to provide (or cause the applicable Obligor to provide)  such manually signed signature pages as soon as reasonably practicable.  





 






BUSINESS.29029164.3       44    Section 22.6. Governing Law.  This Agreement shall be construed and enforced in  accordance with, and the rights of the parties shall be governed by, the law of the State of New  York excluding choice-of-law principles of the law of such State that would permit the application  of the laws of a jurisdiction other than such State.  Section 22.7. Jurisdiction and Process; Waiver of Jury Trial.    (a) The Company irrevocably submits to the non-exclusive jurisdiction of any  New York State or federal court sitting in the Borough of Manhattan, The City of New  York, over any suit, action or proceeding arising out of or relating to this Agreement or the  Notes or any other Financing Document.  To the fullest extent permitted by applicable law,  the Company irrevocably waives and agrees not to assert, by way of motion, as a defense  or otherwise, any claim that it is not subject to the jurisdiction of any such court, any  objection that it may now or hereafter have to the laying of the venue of any such suit,  action or proceeding brought in any such court and any claim that any such suit, action or  proceeding brought in any such court has been brought in an inconvenient forum.  (b) The Company agrees, to the fullest extent permitted by applicable law, that  a final judgment in any suit, action or proceeding of the nature referred to in Section 22.7(a)  brought in any such court shall be conclusive and binding upon it subject to rights of appeal,  as the case may be, and may be enforced in the courts of the United States of America or  the State of New York (or any other courts to the jurisdiction of which it or any of its assets  is or may be subject) by a suit upon such judgment.  (c) The Company consents to process being served by or on behalf of any  holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.7(a)  by mailing a copy thereof by registered, certified priority or express mail (or any  substantially similar form of mail), postage prepaid, return receipt or delivery confirmation  requested, to it at its address specified in Section 18 or at such other address of which such  holder shall then have been notified pursuant to said Section.  The Company agrees that  such service upon receipt (i) shall be deemed in every respect effective service of process  upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted  by applicable law, be taken and held to be valid personal service upon and personal delivery  to it.  Notices hereunder shall be conclusively presumed received as evidenced by a  delivery receipt furnished by the United States Postal Service or any reputable commercial  delivery service.  (d) Nothing in this Section 22.7 shall affect the right of any holder of a Note  to serve process in any manner permitted by law, or limit any right that the holders of any  of the Notes may have to bring proceedings against the Company in the courts of any  appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one  jurisdiction in any other jurisdiction.  (e) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY  ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES,  ANY OTHER FINANCING DOCUMENT OR ANY OTHER DOCUMENT EXECUTED  IN CONNECTION HEREWITH OR THEREWITH.  





 






BUSINESS.29029164.3       45    Section 22.8. Division. For all purposes hereunder, and under the other Financing  Documents, if in connection with any division or plan of division pursuant to Section 18-217 of  the Delaware Limited Liability Company Act law (or any comparable event under a different  jurisdiction’s laws) (a “Division”): (a) any asset, right, obligation or liability of any Person  becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to  have been transferred from the original Person to the subsequent Person, and (b) any new Person  comes into existence, such new Person shall be deemed to have been organized by the holders of  its equity interests at such time. Any reference herein or therein to a merger, consolidation,  amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply  to a Division of or by a limited liability company, or an allocation of assets to a series of a limited  liability company (or the unwinding of such a Division or allocation), as if it were a merger,  consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as  applicable, to, of or with a separate Person. Any Division of a limited liability company shall  constitute a separate Person hereunder and thereunder (and each Division of any limited liability  company that is a Subsidiary, joint venture or any other like term shall also constitute such a  Person) on the first date of its existence.    





 






BUSINESS.29029164.3         If you are in agreement with the foregoing, please sign the form of agreement on a  counterpart of this Agreement and return it to the Company, whereupon this Agreement shall  become a binding agreement between you and the Company.  Very truly yours,  TEACHERS INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA, on behalf of  THE REAL ESTATE ACCOUNT   By:___________________________________  Name:  Title:  This Agreement is hereby  accepted and agreed to as  of the date hereof.  [PURCHASER SIGNATURE BLOCKS]  





 






BUSINESS.29029164.3       Schedule A-1    Schedule A  DEFINED TERMS  As used herein, the following terms have the respective meanings set forth below or set  forth in the Section hereof following such term:  “Affiliate” means, at any time, and with respect to any Person, any other Person that at  such time directly or indirectly through one or more intermediaries Controls, or is Controlled by,  or is under common Control with, such first Person.  Unless the context otherwise clearly requires,  any reference to an “Affiliate” is a reference to an Affiliate of the Company.  “Agreement” means this Note Purchase Agreement, including all Schedules attached to  this Agreement.  “Alternative Investments” means Assets that do not represent direct or indirect  investments (through joint ventures or otherwise) in private Projects, including investments in (a)  property debt instruments of Persons in which the Company does not have an equity or debt  ownership interest, (b) public company equity or debt securities or (c) equity or debt securities  issued by a private company that is substantially engaged in an operating business (other than any  such Person that is controlled by the Company); provided that Alternative Investments shall not  include Assets that are (x) participating mortgages granted by a non-public Person or (y) debt  instruments that are convertible to equity at the option of the Company.  “Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S.  jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt  Practices Act and the U.K. Bribery Act 2010.  “Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S.  jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other  money laundering predicate crimes, including the Currency and Foreign Transactions Reporting  Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.  “Asset” means, with respect to any Company Party, any individual real property or other  investment asset (or related group of assets which is treated by the Company as a single  investment) owned directly or indirectly by a Company Party from time to time.  “Bank Agent” means (a) JPMorgan Chase Bank, N.A., as administrative agent to the Bank  Lenders under the Bank Credit Agreement or its successors and assigns or (b) any other financial  institution designated by the holders of the Bank Indebtedness (by providing written notice to the  holders of such designation) as the “Bank Agent” for purposes of this Agreement.  “Bank Credit Agreement” means that certain Credit Agreement dated as of September  20, 2018 by and among, among others, the Company, the Bank Agent and the Bank Lenders.  “Bank Indebtedness” means the Indebtedness incurred under the Bank Documents.  





 






BUSINESS.29029164.3       Schedule A-2    “Bank Documents” means, collectively, the Bank Credit Agreement and the other Loan  Documents (as such term is defined in the Bank Credit Agreement).  “Bank Lenders” means the financial institutions party to the Bank Credit Agreement, as  lenders, and each of their successors and permitted assigns.  “Blocked Person” means (a) a Person whose name appears on the list of Specially  Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity, organization,  country or regime that is blocked or a target of sanctions that have been imposed under U.S.  Economic Sanctions Laws or (c) a Person that is an agent, department or instrumentality of, or is  otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any  Person, entity, organization, country or regime described in clause (a) or (b).  “Business Day” means any day other than a Saturday, a Sunday or a day on which  commercial banks in New York, New York are required or authorized to be closed.  “Capital Lease Obligations” means, with respect to any Person. the obligations of such  Person to pay rent or other amounts under any lease of (or other arrangement conveying the right  to use) real or personal property, or a combination thereof, which obligations are required to be  classified and accounted for as capital leases or financing leases on a balance sheet of such Person  under GAAP, and the amount of such obligations shall be the capitalized amount thereof  determined in accordance with GAAP.  “Change in Control” means any material change, direct or indirect, in the management of  the Company or another Company Party, provided, notwithstanding the foregoing, (a) any merger,  consolidation or reorganization permitted under Section 10.2 shall not constitute such a change in  the management of the Company, or (b) any change in the Company’s independent fiduciary shall  not constitute a “Change in Control” for purposes of this Agreement and any change in the  personnel (including, without limitation, any portfolio managers) or ancillary services provided by  TIAA or any Affiliate thereof shall not constitute a “Change in Control” for purposes of this  Agreement.  “Closing” is defined in Section 3.  “Code” means the Internal Revenue Code of 1986 and the rules and regulations  promulgated thereunder from time to time.    “Company” is defined in the first paragraph of this Agreement.    “Company Parties” means, collectively, the Company, the Subsidiary Guarantors and  each other Qualified SPE owning a Qualified Asset (but only so long as such Qualified SPE owns  such Qualified Asset and such asset is a Qualified Asset hereunder).  “Compliance Certificate” means a certificate delivered pursuant to Section 7.2(a).  “Confidential Information” is defined in Section 20.  





 






BUSINESS.29029164.3       Schedule A-3    “Control” means the possession, directly or indirectly, 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; and the terms “Controlled” and “Controlling” shall have  meanings correlative to the foregoing.  “Controlled Entity” means any of the Subsidiaries of the Company and any of their or  the Company’s respective Controlled Affiliates.  “Default” means an event or condition the occurrence or existence of which would, with  the lapse of time or the giving of notice or both, become an Event of Default.  “Default Rate” means that rate of interest per annum for the Notes of any Series that is  the greater of (a) 2% above the rate of interest stated in clause (a) of the first paragraph of the  Notes of such Series or (b) 2% over the rate of interest publicly announced by JPMorgan Chase  Bank, N.A. in New York, New York as its “base” or “prime” rate.  “Disclosure Documents” is defined in Section 5.3.  “Division” is defined in Section 22.8.  “EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System or  any successor SEC electronic filing system for such purposes.  “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,  regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,  licenses, agreements or governmental restrictions relating to pollution and the protection of the  environment or the release of any materials into the environment, including those related to  Hazardous Materials.  “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  Company or any Company Party directly or indirectly, resulting from or based upon (a) violation  of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or  disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or  threatened release of any Hazardous Materials into the environment or (e) any contract, agreement  or other consensual arrangement (other than the Financing Documents) pursuant to which liability  is assumed or imposed with respect to any of the foregoing.  “ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and  regulations promulgated thereunder from time to time in effect.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that is  treated as a single employer together with the Company under section 414 of the Code.  “Event of Default” is defined in Section 11.  





 






BUSINESS.29029164.3       Schedule A-4    “FATCA” means (a) sections 1471 through 1474 of the Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not  materially more onerous to comply with), together with any current or future regulations or official  interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an  intergovernmental agreement between the United States of America and any other jurisdiction,  which (in either case) facilitates the implementation of the foregoing clause (a), and (c) any  agreements entered into pursuant to section 1471(b)(1) of the Code.  “Financing Documents” means, collectively, this Agreement, the Notes, the Subsidiary  Guaranty and any other agreement, certificate and/or instrument executed and/or delivered in  connection therewith, each as may be amended, restated or otherwise modified from time to time.  “Fixed Charges Ratio” means, as at any date, the ratio of (a) Investment Income, Net for  the most recent four fiscal quarters ending on or most recently ended prior to such date to (b)  Interest Expense (as such term is reported on Company’s financial statements) for such period plus  scheduled amortization (excluding balloon payments due at maturity) on Total Outstanding  Indebtedness for the most recent fiscal quarter ending on or most recently ended prior to such date,  multiplied by four (4); provided that, with respect to such scheduled amortization amounts,  Company shall set forth in the Compliance Certificate, as applicable, delivered to the holders of  Notes for the applicable period of determination: the name, and corresponding amount of  amortization included in the calculation of Fixed Charges Ratio; provided further that,  notwithstanding anything to the contrary contained herein, any calculation of Interest Expense or  scheduled amortization with respect to any Subsidiaries of Company that are not Wholly-Owned  by Company shall be determined on an ‘at share’ basis.  “Form 10-K” is defined in Section 7.1(b).  “Form 10-Q” is defined in Section 7.1(a).  “GAAP” means (a) generally accepted accounting principles as in effect from time to time  in the United States of America and (b) for purposes of Section 9.6, with respect to any Company  Party (other than then Company), generally accepted accounting principles (including  International Financial Reporting Standards, as applicable) as in effect from time to time in the  jurisdiction of organization of such Subsidiary.  “Governmental Authority” means  (a) the government of  (i) the United States of America or any state or other political  subdivision thereof, or  (ii) any other jurisdiction in which the Company or any Subsidiary  conducts all or any part of its business, or which asserts jurisdiction over any  properties of the Company or any Subsidiary, or  





 






BUSINESS.29029164.3       Schedule A-5    (b) any entity exercising executive, legislative, judicial, regulatory or  administrative functions of, or pertaining to, any such government.  “Governmental Official” means any governmental official or employee, employee of any  government-owned or government-controlled entity, political party, any official of a political  party, candidate for political office, official of any public international organization or anyone else  acting in an official capacity.  “Guaranty” means, with respect to any Person (the “guarantor”) means any obligation,  contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in  any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or  indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such  Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)  any security for the payment thereof, (b) to purchase or lease property, securities or services for  the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,  (c) to maintain working capital, equity capital or any other financial statement condition or  liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or  other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty  issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not  include endorsements for collection or deposit in the ordinary course of business.  “Hazardous Materials” means any and all pollutants, toxic or hazardous wastes or other  substances that might pose a hazard to health and safety, the removal of which may be required or  the generation, manufacture, refining, production, processing, treatment, storage, handling,  transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is  or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea  formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead  based paint, radon gas or similar restricted, prohibited or penalized substances.  “holder” means, with respect to any Note, the Person in whose name such Note is  registered in the register maintained by the Company pursuant to Section 13.1, provided, however,  that if such Person is a nominee, then for the purposes of Sections 7, 12, 17.2 and 18 and any  related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note  whose name and address appears in such register.  “INHAM Exemption” is defined in Section 6.2(e).  “Indebtedness” with respect to any Person means, at a particular time, without  duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or  advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or  similar instruments, (c) all obligations of such Person upon which interest charges are customarily  paid (excluding trade accounts in the ordinary course of business so long as such trade accounts  are timely paid or contested within the ordinary course of business), (d) all obligations of such  Person under conditional sale or other title retention agreements relating to property acquired by  such Person, (e) all obligations of such Person in respect of the deferred purchase price of property  





 






BUSINESS.29029164.3       Schedule A-6    or services (excluding current accounts payable incurred in the ordinary course of business), (f) all  Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing  right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such  Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by  such Person of Indebtedness of others, provided that for purposes of calculating Indebtedness for  this clause (g), any customary non-recourse carve-out Guarantees that are not being enforced and  for which no demand has been made thereunder shall be valued at $0, (h) all Capital Lease  Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an  account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or  otherwise, of such Person in respect of bankers’ acceptances and (k) all obligations under or in  respect of Swap Agreements.  The Indebtedness of any Person shall include the Indebtedness of  any other entity (including any partnership in which such Person is a general partner) to the extent  such Person is liable therefor as a result of such Person’s ownership interest in or other relationship  with such entity, except to the extent the terms of such Indebtedness provide that such Person is  not liable therefor.  “Individual Unencumbered Asset Value” has the meaning given in the definition of  Unencumbered Asset Value.  “Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note  holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount  of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other  financial institution, any pension plan, any investment company, any insurance company, any  broker or dealer, or any other similar financial institution or entity, regardless of legal form, and  (d) any Related Fund of any holder of any Note.  “Investment Income, Net” means as defined/disclosed in either of the publicly issued  TIAA Real Estate Account Filings: 10-Q Report (Quarterly Report Pursuant To Section 13 Or  15(D) Of The Securities Exchange Act Of 1934) and/or 10-K Report (Annual Report Pursuant To  Section 13 Or 15(D) Of The Securities Exchange Act Of 1934), as adjusted by the Company in  accordance with its prior practice to exclude property-level and corporate-level interest expenses  incurred.  “Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security  interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured  party to or of such Person under any conditional sale or other title retention agreement or capital  lease, upon or with respect to any property or asset of such Person (including in the case of stock,  stockholder agreements, voting trust agreements and all similar arrangements).  “Make-Whole Amount” is defined in Section 8.6.  “Material” means material in relation to the business, operations, affairs, financial  condition, assets or properties of the Company and its Subsidiaries taken as a whole.  “Material Adverse Effect” means a material adverse effect on (a) the business,  operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries  





 






BUSINESS.29029164.3       Schedule A-7    taken as a whole, (b) the ability of any Obligor to perform its obligations under any Financing  Document to which such Obligor is party, or (c) the validity or enforceability of this Agreement,  the Notes or any other Financing Document.  “Material Credit Facility” means, as to the Company and its Subsidiaries,  (a) the Bank Credit Agreement, including any renewals, extensions,  amendments, supplements, restatements, replacements or refinancing thereof; and  (b) any other agreement(s) creating or evidencing indebtedness for borrowed  money (other than Nonrecourse Indebtedness) entered into on or after the date of Closing  by the Company or any Subsidiary, or in respect of which the Company or any Subsidiary  is an obligor or otherwise provides a guarantee or other credit support (“Credit Facility”),  in a principal amount outstanding or available for borrowing equal to or greater than  $100,000,000 (or the equivalent of such amount in the relevant currency of payment,  determined as of the date of the closing of such facility based on the exchange rate of such  other currency); and if no Credit Facility or Credit Facilities equal or exceed such amounts,  then the largest Credit Facility shall be deemed to be a Material Credit Facility.  “Maturity Date” is defined in the first paragraph of each Note.  “Memorandum” is defined in Section 5.3.  “Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is  defined in section 4001(a)(3) of ERISA).  “NAIC” means the National Association of Insurance Commissioners.  “Nonrecourse Indebtedness” means, with respect to a Person, Indebtedness for borrowed  money in respect of which recourse for payment (except for customary exceptions for fraud,  misapplication of funds, environmental indemnities, and other similar customary exceptions to  nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a  Lien securing such Indebtedness.  “Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or  maintained outside the United States of America by the Company or any Subsidiary primarily for  the benefit of employees of the Company or one or more Subsidiaries residing outside the United  States of America, which plan, fund or other similar program provides, or results in, retirement  income, a deferral of income in contemplation of retirement or payments to be made upon  termination of employment, and (b) is not subject to ERISA or the Code.  “Notes” is defined in Section 1.1.  “NYIL” is defined in Section 5.18.  “Obligors” means, collectively, the Company and each Subsidiary Guarantor.  





 






BUSINESS.29029164.3       Schedule A-8    “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.  “OFAC Sanctions Program” means any economic or trade sanction that OFAC is  responsible for administering and enforcing.  A list of OFAC Sanctions Programs may be found  at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.  “Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other  officer of the Company whose responsibilities extend to the subject matter of such certificate.  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in  ERISA.  “Permitted Liens” means:  (a) Liens imposed by law for taxes that are not yet due or (i) the validity or amount  thereof is being contested in good faith by appropriate proceedings, (ii) the applicable Company  Party has set aside on its books adequate reserves with respect thereto in accordance with GAAP  and (iii) the failure to make payment pending such contest could not reasonably be expected to  result in a Material Adverse Effect;  (b) Liens of carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and  other like Liens imposed by law, arising in the ordinary course of business and securing obligations  that are not overdue by more than 30 days or (i) the validity or amount thereof is being contested  in good faith by appropriate proceedings, (ii) the applicable Company Party has set aside on its  books adequate reserves with respect thereto in accordance with GAAP and (iii) the failure to  make payment pending such contest could not reasonably be expected to result in a Material  Adverse Effect;  (c) pledges and deposits made in the ordinary course of business in compliance with  workers’ compensation, unemployment insurance and other social security laws or regulations;  (d) deposits to secure the performance of bids, trade contracts, leases, statutory  obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in  each case in the ordinary course of business;  (e) judgment liens in respect of judgments that do not constitute an Event of Default  under Section 11(j) or Liens on cash and cash equivalents securing obligations with respect to  letters of credit that support any such judgments; and  (f) easements, zoning restrictions, rights of way, covenants and restrictions and similar  encumbrances on real property imposed by law or Governmental Authority or existing at the time  such real property was acquired by an Company Party or arising in the ordinary course of business  that do not secure any monetary obligations and do not materially diminish the value of the affected  property or materially interfere with the ordinary conduct of business of such Company Party;   





 






BUSINESS.29029164.3       Schedule A-9    (g) other Liens incurred in the ordinary course of business that could not reasonably be  expected to have a Material Adverse Effect or which are not individually or collectively reasonably  likely to result in a property-level material adverse effect;  provided that the term “Permitted Liens” shall not include any Lien securing Indebtedness  (other than as permitted in clause (e) and (g) above).  “Person” means an individual, partnership, corporation, limited liability company,  association, trust, unincorporated organization, business entity or Governmental Authority.  “Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject  to Title I of ERISA that is or, within the preceding five years, has been established or maintained,  or to which contributions are or, within the preceding five years, have been made or required to be  made, by the Company or any ERISA Affiliate or with respect to which the Company or any  ERISA Affiliate may have any liability.  “Plan Asset Regulation” means Department of Labor Regulation Section 2510.3-101, 29  C.F.R. § 2510.3-101 as modified by Section 3(42) of ERISA, and any successor statutory or  regulatory provisions.  “Plan of Operation” means the Teachers Insurance and Annuity Association of America  (TIAA) Plan of Operation for Separate Account Business, which was approved by the New York  Insurance Department, as amended, restated, supplemented or otherwise modified from time to  time.  “Preferred Stock” means any class of capital stock of a Person that is preferred over any  other class of capital stock (or similar equity interests) of such Person as to the payment of  dividends or the payment of any amount upon liquidation or dissolution of such Person.  “Project” has the meaning assigned to such term in the definition of “Qualified Assets”.  “property” or “properties” means, unless otherwise specifically limited, real or personal  property of any kind, tangible or intangible, choate or inchoate.  “Proposed Prepayment Date” is defined in Section 8.7(b).  “Protected Persons” is defined in Section 1.3.  “PTE” is defined in Section 6.2(a).  “Purchaser” or “Purchasers” means each of the purchasers that has executed and  delivered this Agreement to the Company and such Purchaser’s successors and assigns (so long as  any such assignment complies with Section 14.2), provided, however, that any Purchaser of a Note  that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as  the result of a transfer thereof pursuant to Section 14.2 shall cease to be included within the  meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.  





 






BUSINESS.29029164.3       Schedule A-10    “Purchaser Schedule” means the Purchaser Schedule to this Agreement listing the  Purchasers of the Notes and including their notice and payment information.  “Qualified Assets” shall mean each real estate Asset (each, a “Project”) accepted as a  Qualified Asset on the date of this Agreement or otherwise pursuant to this Agreement (and which  has not been subsequently removed) and satisfies all of the following requirements:  (a) such Project is of a Target Property Type located within one of the 48 contiguous  states of the United States, the District of Columbia, Alaska or Hawaii;  (b) such Project is Wholly-Owned by the Company or by a Wholly-Owned Subsidiary  of the Company (a “Qualified SPE”) which has good fee or permitted leasehold title to the Project;  (c) (i) such Project is subject to no Lien (other than Permitted Liens (other than any  Lien permitted pursuant to clause (g) of the definition of “Permitted Liens”)) and (ii) such Project  or the applicable Qualified SPE has no secured or unsecured indebtedness (other than current trade  payables);  (d) such Project is not subject to any agreement which prohibits or limits the ability of  the Company or any Qualified SPE to create or incur any Lien (other than Permitted Liens) upon  such Project, including, without limitation, a negative pledge or similar covenant or restriction;  (e) such Project is not subject to any agreement which entitles any entity to the benefit  of any Lien (other than Permitted Lien) on such Projects upon the occurrence of any contingency  (including, without limitation, pursuant to an “equal and ratable” clause);  (f) such Project has no material recognized environmental condition except for  conditions which are not individually or collectively reasonably likely to result in a property-level  material adverse effect;  (g) such Project is in material compliance with all laws, regulations and orders of any  Governmental Authority applicable to it (including all applicable zoning laws) except for any non- compliance which is not individually or collectively reasonably likely to result in a property-level  material adverse effect;  (h) at least 70% of the net lettable area of such Project is leased, provided that such  70% test shall not need to be satisfied so long as the (a) the amount obtained by adding together  the following amounts obtained for each Qualified Asset then in the Unencumbered Asset Pool  (and including any Project then being proposed for inclusion in the Unencumbered Asset Pool):  (i) the Individual Unencumbered Asset Value for a Project multiplied by (ii) the percentage of  such Project’s net lettable area which is leased divided by (b) the then Unencumbered Asset Value  for the Unencumbered Asset Pool (and including any Project then being proposed for inclusion in  the Unencumbered Asset Pool), is at least 80%;   (i) such Project is not an Alternative Investment; and  





 






BUSINESS.29029164.3       Schedule A-11    (j) such Project has been designated as a “Qualified Asset” on Schedule 5.10 as such  Schedule as such Schedule is updated from time to time pursuant to Section 7.2(a).     Upon any Qualified Asset ceasing to qualify as a Qualified Asset for any reason, such  Qualified Asset shall no longer be included in the calculation of the Unencumbered Asset Value.   For the avoidance of confusion, none of the required criteria set forth above shall be deemed  modified or waived to the extent of any representation, warranty or covenant contained in this  Agreement which may be broader in scope as applied to the Company, its Subsidiaries or their  properties generally.  “Qualified SPE” has the meaning assigned to such term in the definition of “Qualified  Assets”.  “Qualified Institutional Buyer” means any Person who is a “qualified institutional  buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.  “QPAM Exemption” is defined in Section 6.2(d).  “Related Fund” means, with respect to any holder of any Note, any fund or entity that  (a) invests in Securities or bank loans, and (b) is advised or managed by such holder, the same  investment advisor as such holder or by an affiliate of such holder or such investment advisor.  “Required Holders” means at any time (i) prior to the Closing, the Purchasers and (ii) on  or after the Closing, the holders of more than 50% in principal amount of the Notes at the time  outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).  “Responsible Officer” means any Senior Financial Officer and any other officer of the  Company with responsibility for the administration of the relevant portion of this Agreement.  “SEC” means the Securities and Exchange Commission of the United States of America.  “Secured Indebtedness” means any Indebtedness secured by a Lien.  “Securities” or “Security” shall have the meaning specified in section 2(1) of the  Securities Act.  “Securities Act” means the Securities Act of 1933 and the rules and regulations  promulgated thereunder from time to time in effect.  “Senior Financial Officer” means the chief financial officer, principal accounting officer,  treasurer or comptroller of the Company.  “Separate Account” is defined in Section 1.3.  “Series” means any one or more series of Notes issued hereunder.  





 






BUSINESS.29029164.3       Schedule A-12    “Series A Notes” is defined in Section 1.1.  “Series B Notes” is defined in Section 1.1.  “Significant Subsidiary” means at any time any Subsidiary that would at such time  constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the SEC as in  effect on the date of the Closing) of the Company.  “Source” is defined in Section 6.2.  “State Sanctions List” means a list that is adopted by any state Governmental Authority  within the United States of America pertaining to Persons that engage in investment or other  commercial activities in Iran or any other country that is a target of economic sanctions imposed  under U.S. Economic Sanctions Laws.  “Subsidiary” means, as to any Person, any other Person in which such first Person or one  or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient  equity or voting interests to enable it or them (as a group) ordinarily, in the absence of  contingencies, to elect a majority of the directors (or Persons performing similar functions) of such  second Person, and any partnership or joint venture if more than a 50% interest in the profits or  capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person  and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily  take major business actions without the prior approval of such Person or one or more of its  Subsidiaries).  Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a  reference to a Subsidiary of the Company.  “Subsidiary Guarantor” means each Subsidiary that has executed and delivered a  Subsidiary Guaranty.  “Subsidiary Guaranty” is defined in Section 9.7(a).  “Substitute Purchaser” is defined in Section 21.  “SVO” means the Securities Valuation Office of the NAIC.  “Target Property Type” means each of the following property types (with each such  classification reasonably determined by the Company): industrial, multi-family (including but not  limited to senior housing), hotel, self -storage, office and retail.  “TIAA” is defined in the first paragraph of this Agreement.  “Total Asset Value” means, as at any date, (a) Total Assets minus (b) an amount equal to  any value (determined in the same manner as described in the definition of “Total Assets”) relating  to any portion of Total Assets owned by a Subsidiary of the Company, which Subsidiary is subject  to certain events of default resulting from acceleration of recourse indebtedness, bankruptcy or  insolvency events, inability or failure to pay debts when due or judgments; provided that,  





 






BUSINESS.29029164.3       Schedule A-13    notwithstanding anything to the contrary contained herein, any such calculation pursuant to the  foregoing clause (b) with respect to any Subsidiaries of the Company that are not Wholly-Owned  by the Company shall be determined on an ‘at share’ basis; provided, further that, notwithstanding  anything to the contrary contained in this Agreement, the value of the following shall be excluded  from any calculation of Total Asset Value at any time:  (i) investments in joint ventures to the extent in excess of 25% of Total Asset Value at  any time;  (ii) investments in debt and securities investments to the extent in excess of 20% of  Total Asset Value at any time;  (iii) investments in assets other than real property interest, cash and accrued investment  income to the extent in excess of 5% of Total Asset Value at any time;  (iv) investments in land to the extent in excess of 5% of Total Asset Value at any time;  (v) investments in developments to the extent in excess of 5% of Total Asset Value at  any time; and  (vi) the sum of investments in (i), (ii), (iii), (iv) and (v) to the extent in excess of 40%  of Total Asset Value at any time.   “Total Assets” means, as at any date, the aggregate value of all assets of the Company,  including on a consolidated basis, any Subsidiaries of the Company, as determined by the  Company in accordance with Company’s ordinary course of business, but not in excess of the “as  is” value of any asset determined pursuant to a third party appraisal performed by a third party  appraiser retained by Company in Company’s reasonable discretion, provided that all such  appraisals must contain an “as is” valuation.  Notwithstanding anything to the contrary contained  herein, any calculation of Total Assets with respect to any Subsidiaries of Company that are not  Wholly-Owned by Company shall be determined on an ‘at share’ basis.  “Total Leverage Ratio” means, as at any date, the percentage obtained by dividing Total  Outstanding Indebtedness by the value of the Total Assets.  “Total Outstanding Indebtedness” means, as at any date, the principal amount of  aggregate outstanding Indebtedness of the Company and its Subsidiaries (as reported in the then  current financial statements of the Company on a consolidated basis, without regard to the market  value adjustment included therein and without duplication).  “Total Secured Outstanding Indebtedness” means, as of any date, the portion of Total  Outstanding Indebtedness that is Secured Indebtedness.  “Total Unsecured Indebtedness” means, as at any date, all of the unsecured Indebtedness  of Company (as reported in the then current financial statements of the Company on a consolidated  basis, without regard to the market value adjustment included therein and without duplication),  





 






BUSINESS.29029164.3       Schedule A-14    and for the purposes hereof such term shall include the aggregate outstanding principal amount of  the Notes on such date.  “United States Person” has the meaning set forth in Section 7701(a)(30) of the Code.  “Unencumbered Asset Pool” means the Qualified Assets identified on Schedule 5.10  attached hereto, as the same may be modified in accordance with Section 7.2(a) hereto, each of  which is owned by the Company or the Qualified SPE indicated thereon.  “Unencumbered Asset Value” mean the aggregate value of the Unencumbered Asset  Pool as determined by the Company prior to the date of this Agreement and, from time to time, in  accordance with Company’s ordinary course of business, but not in excess of the “as is” value of  any asset determined pursuant to a third party appraisal performed by a third party appraiser  retained by Company in Company’s reasonable discretion.  The value of any individual Asset  determined in accordance with the foregoing shall be referred to as an “Individual Unencumbered  Asset Value”.  “Unencumbered Leverage Ratio” means, as at any date, the percentage obtained by  dividing Total Unsecured Indebtedness as of such date by Unencumbered Asset Value as of such  date.  “Unsecured Interest Coverage Ratio” means, as at any date, the ratio of net operating  income attributable to all Qualified Assets for the period of four consecutive fiscal quarters ended  on such date to Unsecured Interest Expense for such period.  “Unsecured Interest Expense” means, for any fiscal period, an amount equal to the sum  of the following with respect to Total Unsecured Indebtedness: (a) total interest expense, accrued  in accordance with GAAP plus (b) all capitalized interest determined in accordance with GAAP,  plus (c) the amortization of deferred financing costs (including in the case of (a) through (c), the  Company’s pro rata share thereof for unconsolidated Subsidiaries and joint ventures).  “USA PATRIOT Act” means United States Public Law 107-56, Uniting and  Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct  Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated  thereunder from time to time in effect.  “U.S. Economic Sanctions Laws” means those laws, executive orders, enabling  legislation or regulations administered and enforced by the United States pursuant to which  economic sanctions have been imposed on any Person, entity, organization, country or regime,  including the Trading with the Enemy Act, the International Emergency Economic Powers Act,  the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC  Sanctions Program.  “Wholly-Owned” means, with respect to any Project, equity interest, or other property  owned or leased, that 100% of the title to such property is held directly or indirectly by, or 100%  of such property is leased directly or indirectly by, the Company or a Subsidiary of the Company.  





 






BUSINESS.29029164.3       Schedule A-15    “Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity interests  (except directors’ qualifying shares) and voting interests of which are owned by any one or more  of the Company and the Company’s other Wholly-Owned Subsidiaries at such time.  





 






BUSINESS.29029164.3       Schedule 1.1-1    Schedule 1.1(a)  [FORM OF SERIES A NOTE]    TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,   on behalf of THE REAL ESTATE ACCOUNT   3.24% SERIES A SENIOR NOTE DUE JUNE 10, 2029  No. [_____] [Date]  $[_______] PPN[______________]  FOR VALUE RECEIVED, the undersigned, TEACHERS INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA, a New York insurance company (“TIAA”), on behalf of THE  REAL ESTATE ACCOUNT, a separate account of TIAA (herein called the “Company”),  hereby promises to pay to [____________], or registered assigns, the principal sum of  [_____________________] DOLLARS (or so much thereof as shall not have been prepaid) on June  10, 2029 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve  30-day months) (a) on the unpaid balance hereof at the rate of 3.24% per annum from the date  hereof, payable semiannually, on the 10th day of June and December in each year, commencing  with the June or December next succeeding the date hereof, and on the Maturity Date, until the  principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on  any overdue payment of interest and (y) during the continuance of an Event of Default, on such  unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum  from time to time equal to the Default Rate, payable semiannually as aforesaid (or, at the option  of the registered holder hereof, on demand).  Payments of principal of, interest on and any Make-Whole Amount with respect to this  Note are to be made in lawful money of the United States of America at JPMorgan Chase Bank,  N.A. in New York, New York or at such other place as the Company shall have designated by  written notice to the holder of this Note as provided in the Note Purchase Agreement referred to  below.  This Note is one of a series of Series A Senior Notes (herein called the “Notes”) issued  pursuant to the Note Purchase Agreement, dated June 10, 2022 (as from time to time amended, the  “Note Purchase Agreement”), between the Company and the respective Purchasers named  therein and is entitled to the benefits thereof.  Each holder of this Note will be deemed, by its  acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the  Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note  Purchase Agreement.  Unless otherwise indicated, capitalized terms used in this Note shall have  the respective meanings ascribed to such terms in the Note Purchase Agreement.  This Note is a registered Note and, as provided in the Note Purchase Agreement, upon  surrender of this Note for registration of transfer accompanied by a written instrument of transfer  duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing,  





 






BUSINESS.29029164.3       Schedule 1.1-2    a new Note for a like principal amount will be issued to, and registered in the name of, the  transferee.  Prior to due presentment for registration of transfer, the Company may treat the Person  in whose name this Note is registered as the owner hereof for the purpose of receiving payment  and for all other purposes, and the Company will not be affected by any notice to the contrary.  This Note is subject to prepayment, in whole or from time to time in part, at the times and  on the terms specified in the Note Purchase Agreement, but not otherwise.  If an Event of Default occurs and is continuing, the principal of this Note may be declared  or otherwise become due and payable in the manner, at the price (including any applicable Make- Whole Amount) and with the effect provided in the Note Purchase Agreement.  This Note shall be construed and enforced in accordance with, and the rights of the  Company and the holder of this Note shall be governed by, the law of the State of New York  excluding choice-of-law principles of the law of such State that would permit the application of  the laws of a jurisdiction other than such State.  TEACHERS INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA, on behalf of  THE REAL ESTATE ACCOUNT     By:___________________________________  Name:  Title:  





 






BUSINESS.29029164.3       Schedule 1.3-1    Schedule 1.1(b)  [FORM OF SERIES B NOTE]    TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,   on behalf of THE REAL ESTATE ACCOUNT   3.35% SERIES B SENIOR NOTE DUE JUNE 10, 2032  No. [_____] [Date]  $[_______] PPN[______________]  FOR VALUE RECEIVED, the undersigned, TEACHERS INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA, a New York insurance company (“TIAA”), on behalf of THE  REAL ESTATE ACCOUNT, a separate account of TIAA (herein called the “Company”),  hereby promises to pay to [____________], or registered assigns, the principal sum of  [_____________________] DOLLARS (or so much thereof as shall not have been prepaid) on June  10, 2032 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve  30-day months) (a) on the unpaid balance hereof at the rate of 3.35% per annum from the date  hereof, payable semiannually, on the 10th day of June and December in each year, commencing  with the June or December next succeeding the date hereof, and on the Maturity Date, until the  principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on  any overdue payment of interest and (y) during the continuance of an Event of Default, on such  unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum  from time to time equal to the Default Rate, payable semiannually as aforesaid (or, at the option  of the registered holder hereof, on demand).  Payments of principal of, interest on and any Make-Whole Amount with respect to this  Note are to be made in lawful money of the United States of America at JPMorgan Chase Bank,  N.A. in New York, New York or at such other place as the Company shall have designated by  written notice to the holder of this Note as provided in the Note Purchase Agreement referred to  below.  This Note is one of a series of Series B Senior Notes (herein called the “Notes”) issued  pursuant to the Note Purchase Agreement, dated June 10, 2022 (as from time to time amended, the  “Note Purchase Agreement”), between the Company and the respective Purchasers named  therein and is entitled to the benefits thereof.  Each holder of this Note will be deemed, by its  acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the  Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note  Purchase Agreement.  Unless otherwise indicated, capitalized terms used in this Note shall have  the respective meanings ascribed to such terms in the Note Purchase Agreement.  This Note is a registered Note and, as provided in the Note Purchase Agreement, upon  surrender of this Note for registration of transfer accompanied by a written instrument of transfer  duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing,  





 






BUSINESS.29029164.3       Schedule 4.4(a)-2    a new Note for a like principal amount will be issued to, and registered in the name of, the  transferee.  Prior to due presentment for registration of transfer, the Company may treat the Person  in whose name this Note is registered as the owner hereof for the purpose of receiving payment  and for all other purposes, and the Company will not be affected by any notice to the contrary.  This Note is subject to prepayment, in whole or from time to time in part, at the times and  on the terms specified in the Note Purchase Agreement, but not otherwise.  If an Event of Default occurs and is continuing, the principal of this Note may be declared  or otherwise become due and payable in the manner, at the price (including any applicable Make- Whole Amount) and with the effect provided in the Note Purchase Agreement.  This Note shall be construed and enforced in accordance with, and the rights of the  Company and the holder of this Note shall be governed by, the law of the State of New York  excluding choice-of-law principles of the law of such State that would permit the application of  the laws of a jurisdiction other than such State.  TEACHERS INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA, on behalf of  THE REAL ESTATE ACCOUNT     By:____________________________________  Name:  Title:    





 






BUSINESS.29029164.3       Schedule 4.4(a)-1    Schedule 4.4(a)  FORM OF OPINION OF SPECIAL COUNSEL  FOR THE OBLIGORS     





 






BUSINESS.29029164.3       Schedule 5.3-1    Schedule 5.3  DISCLOSURE MATERIALS    





 






BUSINESS.29029164.3       Schedule 5.4-1    Schedule 5.4  SUBSIDIARIES OF THE COMPANY AND  OWNERSHIP OF SUBSIDIARY STOCK  (i) Subsidiaries:    Name Jurisdiction % of Shares Subsidiary Guarantor  (Yes/No)                        (ii) Affiliates:  (iii) Company’s Directors and Senior Officers:  Directors  Senior Officers  





 






BUSINESS.29029164.3       Schedule 5.5-1    Schedule 5.5  FINANCIAL STATEMENTS  





 






BUSINESS.29029164.3       Schedule 5.10-1    SCHEDULE 5.10  QUALIFIED ASSETS  





 






BUSINESS.29029164.3       Schedule 5.15-1    Schedule 5.15  EXISTING INDEBTEDNESS OF THE COMPANY AND ITS SUBSIDIARIES          FINAL OUTSTANDING  OBLIGOR(S) CREDITOR CUSIP OR ISIN  (IF APPLICABLE)  DESCRIPTION OF  INDEBTEDNESS  INTEREST  RATE(S)  COLLATER AL  MATURITY PRINCIPAL  AMOUNT    





 






BUSINESS.29029164.3         TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,  ON BEHALF OF THE REAL ESTATE ACCOUNT   C/O TIAA  730 THIRD AVENUE  NEW YORK, NEW YORK 10017    INFORMATION RELATING TO PURCHASERS   NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF  NOTES TO BE PURCHASED   [NAME OF PURCHASER] $  (1) All payments by wire transfer of immediately available  funds to:      with sufficient information to identify the source  and application of such funds.      (2) All notices of payments and written confirmations of  such wire transfers:    (3) E-mail address for Electronic Delivery:          (4)  All other communications:  (5)  U.S. Tax Identification Number: