JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS INDENTURE. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS INDENTURE, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
INDENTURE OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS
INDENTURE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[REMAINDER OF PAGE INTENTIONALLY BLANK;
EXECUTION PAGE FOLLOWS]
59
IN WITNESS WHEREOF, Borrower has caused this Indenture to be signed in its
name by one of the duly authorized officers of Borrower, and Trustee, in token
of its acceptance of the trusts created hereunder, has caused this Indenture to
be signed in its corporate name by one of its duly authorized signatories, all
as of the day and year first above written.
Borrower:
LTF REAL ESTATE VRDN I, LLC
By:
Print:
Eric J. Buss
Its:
Secretary
Trustee:
MANUFACTURERS AND TRADERS TRUST
COMPANY, as trustee
By:
Print:
Title:
[EXECUTION PAGE OF INDENTURE OF TRUST]
Exhibit A to Indenture
FORM OF NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THIS NOTE UNDER PARAGRAPH (b)(1)(ii) OF RULE 144 UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO BORROWER (AS DEFINED BELOW) OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER);
(3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D)
ABOVE), IT WILL FURNISH TO MANUFACTURERS AND TRADERS TRUST COMPANY, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE) (AND TO BORROWER AS PROVIDED BELOW),
SUCH CERTIFICATIONS OR LEGAL OPINIONS AS TRUSTEE (OR BORROWER IN THE CASE OF A
TRANSFER PURSUANT TO CLAUSE 2(C) ABOVE) MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER