RELATED THERETO, INCLUDING SELLER'S RIGHTS TO CALL CAPITAL FROM ITS INVESTORS;
(F)
ENTER INTO ANY TRANSACTION OF MERGER OR CONSOLIDATION OR
AMALGAMATION, OR LIQUIDATE, WIND UP OR DISSOLVE ITSELF (OR SUFFER ANY
LIQUIDATION, WINDING UP OR DISSOLUTION), SELL ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS WITHOUT THE CONSENT OF BUYER IN ITS SOLE AND ABSOLUTE DISCRETION;
(G)
CONSENT OR ASSENT TO ANY AMENDMENT OR SUPPLEMENT TO, OR
TERMINATION OF, ANY NOTE, LOAN AGREEMENT, MORTGAGE OR GUARANTEE RELATING TO THE
PURCHASED ASSETS OR OTHER MATERIAL AGREEMENT OR INSTRUMENT RELATING TO THE
PURCHASED ASSETS OTHER THAN IN ACCORDANCE WITH ARTICLE 28;
(H)
PERMIT THE ORGANIZATIONAL DOCUMENTS OR ORGANIZATIONAL STRUCTURE OF
DCTRT REPO HOLDCO LLC, TRT LENDING LLC OR DCTRT SECURITIES HOLDCO LLC TO BE
AMENDED WITHOUT (I) THE PRIOR WRITTEN CONSENT OF BUYER, GRANTED OR WITHHELD IN
ITS SOLE AND ABSOLUTE DISCRETION, OR (II) THE DELIVERY TO BUYER OF A NEW
NON-CONSOLIDATION OPINION OR AN OPINION THAT SUCH AMENDMENTS HAVE NO EFFECT ON
THE NON-CONSOLIDATION OPINION DELIVERED IN CONNECTION WITH THE EXECUTION OF THIS
AGREEMENT;
(I)
ADMIT ANY ADDITIONAL MEMBERS OR PARTNERS IN SELLER;
(J)
ACQUIRE OR MAINTAIN ANY RIGHT OR INTEREST IN ANY PURCHASED ASSET
OR UNDERLYING MORTGAGED PROPERTY THAT IS SENIOR TO OR PARI PASSU WITH THE RIGHTS
AND INTERESTS OF BUYER THEREIN UNDER THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS;
(K)
USE ANY PART OF THE PROCEEDS OF ANY TRANSACTION HEREUNDER FOR ANY
PURPOSE WHICH VIOLATES, OR WOULD BE INCONSISTENT WITH, THE PROVISIONS OF
REGULATION T, U OR X OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM;
(L)
[INTENTIONALLY OMITTED];
(M)
[INTENTIONALLY OMITTED];
(N)
SHALL NOT, DIRECTLY OR INDIRECTLY, PERMIT THE RATIO OF DIVIDEND
CAPITAL TOTAL REALTY TRUST INC.'S (I) LEVERAGE (II) TO NET ASSETS, AS EACH OF
SUCH TERMS ARE DEFINED FROM TIME TO TIME IN THE ORGANIZATIONAL DOCUMENTS OF
DIVIDEND CAPITAL TOTAL REALTY TRUST INC., TO EXCEED 3.00 TO 1.00; OR
(O)
ENTER INTO ANY HEDGING TRANSACTION WITH ANY ENTITY THAT IS NOT AN
AFFILIATED HEDGING COUNTERPARTY OR A QUALIFIED HEDGING COUNTERPARTY.
56
ARTICLE 12.
AFFIRMATIVE COVENANTS OF SELLER
(A)
SELLER SHALL PROMPTLY NOTIFY BUYER OF ANY MATERIAL ADVERSE CHANGE
IN ITS BUSINESS OPERATIONS AND/OR FINANCIAL CONDITION; PROVIDED, HOWEVER, THAT
NOTHING IN THIS ARTICLE 12 SHALL RELIEVE SELLER OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
(B)
SELLER SHALL PROVIDE BUYER WITH COPIES OF SUCH DOCUMENTS AS BUYER
MAY REQUEST EVIDENCING THE TRUTHFULNESS OF THE REPRESENTATIONS SET FORTH IN
ARTICLE 10.
(C)
SELLER (1) SHALL DEFEND THE RIGHT, TITLE AND INTEREST OF BUYER IN
AND TO THE COLLATERAL AND PURCHASED ITEMS AGAINST, AND TAKE SUCH OTHER ACTION AS
IS NECESSARY TO REMOVE, THE LIENS, SECURITY INTERESTS, CLAIMS AND DEMANDS OF ALL
PERSONS (OTHER THAN SECURITY INTERESTS BY OR THROUGH BUYER) AND (2) SHALL, AT
BUYER'S REASONABLE REQUEST, TAKE ALL ACTION NECESSARY TO ENSURE THAT BUYER WILL
HAVE A FIRST PRIORITY SECURITY INTEREST IN THE PURCHASED ASSETS SUBJECT TO ANY
OF THE TRANSACTIONS IN THE EVENT SUCH TRANSACTIONS ARE RECHARACTERIZED AS
SECURED FINANCINGS.
(D)
SELLER SHALL NOTIFY