Common use of Credit Enhancement Clause in Contracts

Credit Enhancement. If in connection with any Senior Loan, any Senior Lender requires a customary guaranty of non-recourse carve outs to facilitate the closing and funding of any Senior Loan (each, a “Loan Guaranty” and, collectively, the “Loan Guaranties”) DCT LLC shall cause DCT or other party acceptable to the applicable Senior Lender to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by the act or omission of TRT LLC or any of its controlled Affiliates) in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation of Code Section 514(c)(9)(E) and the Treasury Regulations thereunder. Subject to the limitation below in this sentence, the Partnership hereby agrees to indemnify and hold harmless DCT LLC providing such Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “Loan Guaranty Losses”); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation.”

Credit Enhancement. (a) If at any time during the term of this Agreement, SRT receives a Rating Downgrade, SRT shall (i) immediately notify the Senior Lenders of such Rating Downgrade, providing copies of the rating documents to the Senior Lenders and (ii) within the 30 days following receipt of such Rating Downgrade, provide the Senior Lenders with a Credit Enhancement Instrument naming both Senior Lenders as beneficiaries thereof; provided, however, that if SRT requests the Senior Lenders to perform a credit review pursuant to sub-section (c) below, SRT may delay the delivery of the Credit Enhancement Instrument until either of the Senior Lenders notify SRT in writing of the result of the credit review. (b) If subsequent to SRT's delivery of a Credit Enhancement Instrument pursuant to the Rating Downgrade in sub-section (a) above, the Rating Agency issues a Minimum Rating PROJECT FUNDS AGREEMENT or a higher rating, the Senior Lenders shall, within 30 days following receipt of documentary evidence of such Minimum Rating or a higher rating, authorize the termination of the Credit Enhancement Instrument provided by SRT. Upon the issuance of the Minimum Rating or a higher rating and the termination of the Credit Enhancement Instrument, SRT shall be subject to sub-section (a) above. (c) Notwithstanding sub-section (a) above, if SRT receives a Rating Downgrade, it shall have the right, within 30 days following the receipt of the Rating Downgrade, to request the Senior Lenders to perform a credit review of SRT, such credit review to be conducted in the manner in which the Senior Lenders reasonably determine. SRT agrees that it will provide the Senior Lenders and their agents, officers and employees with all its financial information requested by the Senior Lenders and that it will allow the Senior Lenders and their agents, officers and employees access to its officers and employees in the course of the requested credit review. Once the credit review is completed, either Senior Lender shall determine, in its sole discretion and, absent manifest and material error, without any right of SRT to contest such determination, whether a Credit Enhancement Instrument must be provided by SRT pursuant to sub-section (a) above and such Senior Lender shall provide written notice of such determination to SRT and the other Senior Lender. If either Senior Lender determines that SRT shall provide a Credit Enhancement Instrument, SRT shall, within 30 days following receipt of such notice, provide a Credit Enhancement Instrument naming both Senior Lenders as beneficiaries thereof. (d) If both of the Senior Lenders determine, in accordance with sub-section (c) above, that SRT shall not provide a Credit Enhancement Instrument, until the earlier of the date on which (i) SRT obtains a Minimum Rating in accordance with sub-section (b) above, or (ii) SRT delivers a Credit Enhancement Instrument naming both Senior Lenders as beneficiaries thereof, the Senior Lenders shall have the right to perform an annual credit review of SRT, in the same manner specified in sub-section (c) above. Upon the conclusion of each annual credit review of SRT, either Senior Lender shall determine, in its sole discretion and, absent manifest and material error, without any right of SRT to contest such determination, whether SRT shall provide the Senior Lenders with a Credit Enhancement Instrument in the terms of sub-section (a) above and such Senior Lender shall provide written notice of such determination to SRT and the other Senior Lender. If either Senior Lender determines that SRT shall provide a Credit Enhancement Instrument, SRT shall, within 30 days following receipt of such notice, provide both of the Senior Lenders with a Credit Enhancement Instrument naming both Senior Lenders thereof as beneficiaries. (e) SRT shall pay the Senior Lenders, or any third party who undertakes on their behalf to consult or conduct the credit review, a fee in the amount of twenty-five thousand Dollars ($ 25,000) in connection with any each credit review of SRT to be performed by the Senior LoanLenders pursuant to sub-sections (c) and (d) above, any such fee to be increased on each anniversary of the execution of this Agreement, in the same percentage that the Consumer Price Index published by the Bureau of Labor Statistics of the U.S. Department of Labor increased during the immediately prior calendar year. SRT shall pay the credit review fee not later than 10 days prior to the initiation of the relevant credit review in accordance with the Senior Lenders' payment instructions. In addition, travel and out of pocket expenses incurred by the Senior Lenders in the performance of the credit review, must be paid by SRT within 15 days following receipt of the Senior Lenders' ▇▇▇▇, together with appropriate supporting documentation. The Senior Lenders PROJECT FUNDS AGREEMENT may refrain from performing a credit review if they have not received the corresponding credit review fee and, in such event, the Senior Lenders shall have the right to require SRT to provide a Credit Enhancement Instrument pursuant to and in accordance with sub-section (d) above. (f) SRT agrees that it shall arrange for a credit analysis update by the Rating Agency at least annually and SRT shall send to the Senior Lenders copies of the credit rating update issued by the Rating Agency. SRT further agrees to maintain the credit rating services of the Rating Agency during the term of this Agreement. If SRT fails to obtain the annual credit analysis update or discontinues the credit rating services required hereunder, SRT shall immediately provide the Senior Lenders with a Credit Enhancement Instrument naming both Senior Lender requires a customary guaranty of non-recourse carve outs to facilitate the closing and funding of any Senior Loan (each, a “Loan Guaranty” and, collectively, the “Loan Guaranties”) DCT LLC shall cause DCT or other party acceptable to the applicable Senior Lender to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by the act or omission of TRT LLC or any of its controlled Affiliates) in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation of Code Section 514(c)(9)(E) and the Treasury Regulations thereunder. Subject to the limitation below in this sentence, the Partnership hereby agrees to indemnify and hold harmless DCT LLC providing such Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “Loan Guaranty Losses”); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligationbeneficiaries thereof.”

Credit Enhancement. If Either Member may, on a case by case basis, but subject to obtaining Approval, elect to provide credit enhancement for Authorized Financing for one or more Properties in the form of guaranties, indemnifications, pledges of collateral or letters of credit to the provider of the Authorized Financing (a "Lender"), in each case to secure certain obligations of the Company or any Subsidiary Company (any such credit enhancement shall be collectively, "Credit Enhancement"). Any request for Approval made by a Member may include proposed fees to be charged to the Company by such Member in connection with any Senior Loan, any Senior Lender requires a customary guaranty of non-recourse carve outs to facilitate the closing and funding providing such Credit Enhancement. The provision of any Senior Loan such Credit Enhancement shall not be deemed a Contribution unless and until any funds payable under any guaranty are paid, or with respect to collateral, such collateral is applied or with respect to a letter of credit, such letter of credit is drawn upon, but shall be deemed a Contribution upon and after such payment, application or draw (each, a “Loan Guaranty” and, collectively, the “Loan Guaranties”) DCT LLC shall cause DCT or other party acceptable but only to the applicable Senior Lender extent funds are paid, collateral applied or a letter of credit is drawn upon). If any Member is required to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding make payments under any liability caused by the act or omission of TRT LLC Credit Enhancement or any Credit Enhancement supplied by a Member is drawn or applied by any Lender against the obligation of the Company or any Subsidiary Company other than in proportion to the Proportionate Shares of all of the Members, or if the Members shall incur reasonable costs in providing such Credit Enhancement that are disproportionate to the Members' Proportionate Shares, then the Member who has proportionally paid or funded less Credit Enhancement or has had proportionally less of its controlled AffiliatesCredit Enhancement so applied (or who has incurred proportionally fewer costs in providing Credit Enhancement) shall promptly reimburse the other Member in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to an amount which shall result in a violation each Member having its Proportionate Share of Code Section 514(c)(9)(Ethe Credit Enhancement applied (or having incurred its Proportionate Share of Credit Enhancement costs) and the Treasury Regulations thereunderContributions deemed made by the Members shall reflect any such payment. Subject If any Member fails to promptly reimburse the other Member, the non-failing Member shall have the right to cause the Company to reimburse both Members for all costs and expenses reasonably incurred by the Members in connection with such Credit Enhancement (and such non-failing Member shall have the unilateral right to issue a Funding Notice in such amount) and the Members agree that such reimbursement shall be made prior to any distributions to the limitation below in this sentence, the Partnership hereby agrees to indemnify and hold harmless DCT LLC providing such Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due Members under the Loan Guaranty (collectively, “Loan Guaranty Losses”); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation.”Article V.

Credit Enhancement. (a) If in connection with any Senior Loana Project Loan approved by the Members contemplates credit support by the Members, any Senior Lender requires then Lion (or another credit-worthy Affiliate) and CPPT (or another credit-worthy Affiliate) will each provide a customary guaranty of non-recourse carve carve-outs and/or an environmental indemnity (the “Credit Enhancement”), all in form reasonably satisfactory to facilitate the closing Lion and funding CPPT. Lion and CPPT shall not be obligated to provide any repayment guaranty of any Senior such Project Loan (each, a “Loan Guaranty” and, collectivelyin the absence of the mutual agreement of Lion and CPPT to do so. In the event that Lion and CPPT do elect to provide any such repayment guaranty in connection with any Project Loan, the “amount of such repayment guaranty shall be maintained until the Project is sold or such Project Loan Guaranties”) DCT LLC is refinanced. Neither Lion nor CPPT shall cause DCT or other party acceptable be required to the applicable Senior Lender to provide increase any such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by the act or omission of TRT LLC or any of its controlled Affiliates) repayment guaranty in order to determine whether such maintain or refinance any Project Loan Guaranty gives rise to partner nonrecourse debt that could reasonably on its original terms. Any Credit Enhancement provided by Lion or CPPT under this Section 4.7(a) shall be expected to result for the benefit of the lender or lenders providing the Project Loan, not the Company. (b) If any Member (the “Responsible Member”) (or an Affiliate of the Responsible Member) (i) breaches any financial covenant, (ii) breaches any restriction imposed by the terms of the Project Loan on transfer of direct or indirect interest in the Company, (iii) breaches any “bad-boy” covenant under a violation of Code Section 514(c)(9)(Enon-recourse carve-out agreement provided in connection with a guaranty or indemnity for a Project Loan, or (iv) and the Treasury Regulations thereunder. Subject is responsible for any other liability to the limitation below in this sentence, lender providing the Partnership hereby agrees to indemnify and hold harmless DCT LLC providing such Project Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “Loan Guaranty Losses”); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraudgross negligence, willful misconduct or gross negligence breach of DCT LLC this Agreement by the Responsible Member (or any of its controlled AffiliatesAffiliate), except such Responsible Member will be solely responsible for curing the breach and/or absorbing all costs due to the extent liability without expense to the Company, applicable Subsidiary or other Member, and any amounts paid by such Responsible Member with respect to such breach or liability shall not be treated as a Capital Contribution by such Responsible Member. In the event that the Partnership other Member (or its Affiliate) is required to make any Credit Enhancement payment as a result of such breach or liability, all of such amounts shall be treated as a Default Contribution by such other Member. (c) Subject to the terms of Section 4.7(b), if demand is made for payment under any guaranty or indemnity provided by CPPT or Lion (or their respective Affiliates) to a Company lender pursuant to Section 4.7(a), then upon demand by CPPT or LIT, as applicable, the Members shall contribute to the Company, pro rata to their Percentage Interests, such sums as may be required for the applicable Subsidiary to pay or perform the guaranteed or indemnified obligation or, in the event the obligation has benefited from been paid pursuant to the Credit Enhancement, to reimburse to party making such wrongful actionpayment pursuant to the Credit Enhancement. Any indemnification obligation Except as provided in Section 4.7(b), any payment pursuant to the Credit Enhancement shall be deemed to be a Capital Contribution by the Member making (or whose Affiliate makes) such payment, provided that a Member shall not receive Capital Contribution credit both for making and contributing for the reimbursement of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligationsame payment by such Member or its Affiliate.”

Credit Enhancement. If in connection with any Senior Loan, any Senior Lender requires a customary guaranty of non-recourse carve outs to facilitate the closing and funding of any Senior Loan (each, a “"Loan Guaranty” " and, collectively, the “"Loan Guaranties”") DCT LLC the Partnership shall cause DCT or such other party as is acceptable to the applicable Senior Lender (each a "Loan Guarantor") to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by the act or omission of TRT LLC or any of its controlled Affiliates) in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation of Code Section 514(c)(9)(E) and the Treasury Regulations thereunder. Subject to the limitation below in this sentence, the Partnership hereby agrees to indemnify indemnify, defend and hold harmless DCT LLC each Loan Guarantor providing such Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “"Loan Guaranty Losses”"); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from or are related to, directly or indirectly, the fraud, willful misconduct or gross negligence of a Loan Guarantor or any of its Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Notwithstanding the foregoing, to the extent that TRT LLC or any Affiliate of TRT is the Loan Guarantor, DCT LLC, and not the Partnership, shall indemnify, defend and hold harmless the Loan Guarantor from and against all Loan Guaranty Losses to the extent such Loan Guaranty Losses arise from or are related to, directly or indirectly, the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation.”"

Credit Enhancement. If (a) On or prior to the Commencement Date, Tenant shall deliver to Landlord a Letter of Credit as security for the full and punctual performance by Tenant of all of the terms of this Lease. For so long as the Letter of Credit is in connection with any Senior Loaneffect and sufficient funds thereunder shall be available for draw, any Senior Lender requires a customary guaranty Landlord shall be entitled to draw such Letter of non-recourse carve outs Credit each month for payment of Base Rent and Additional Rent. In addition, if Landlord shall be entitled to facilitate draw the closing and funding Letter of Credit in whole or in part pursuant to the other provisions of this Lease, Landlord shall have the right, at its option, either to deposit the cash proceeds of any Senior Loan such draw upon the Letter of Credit into a cash collateral account (the “Cash Collateral Account”) established in Landlord’s name and maintained by Landlord or to apply the proceeds to the obligations of Tenant due or to become due hereunder. The Cash Collateral Account shall be under the sole dominion and control of Landlord and Landlord shall have the sole right to make withdrawals from the Cash Collateral Account and to exercise all rights with respect to the amounts deposited in the Cash Collateral Account. (b) The initial letter of credit and any replacement letter of credit issued to Landlord shall satisfy the requirements set forth in this Section 4.7 (each, a “Loan GuarantyLetter of Credit”). Each Letter of Credit shall be a clean, irrevocable, non-documentary and unconditional letter of credit issued by and drawable upon any commercial bank, trust company, national banking association or savings and loan association with offices for banking and drawing purposes in The City of San Francisco or the City of New York (the “Issuing Bank”), which has outstanding, unsecured, uninsured and unguaranteed indebtedness, or shall have issued a letter of credit or other credit facility that constitutes the primary security for an outstanding indebtedness (which is otherwise uninsured and unguaranteed), that is then rated, without regard to qualification of such rating by symbols such as “+” or “-” or numerical notation, “A” or better by ▇▇▇▇▇’▇ Investment Service and “A” or better by Standard & Poor’s Ratings Service (and is not on credit-watch or similar credit review with negative implication), and has combined capital, surplus and undivided profits of not less than $1,000,000,000. Each Letter of Credit shall (i) name Landlord as beneficiary, (ii) be in the amount of the Required Amount, (iii) have a term of not less than one (1) year, (iv) permit multiple drawings, (v) be fully transferable by Landlord without payment of any fees or charges, (vi) at Landlord’s request, name any Leasehold Mortgagee as a co-beneficiary and (vii) otherwise be in form and content satisfactory to Landlord in its sole discretion. If upon the transfer of any Letter of Credit, any fees or charges shall so be imposed, then such fees or charges shall be payable solely by Tenant and the Letter of Credit shall so specify. Regardless of the initial expiration date of any Letter of Credit, each Letter of Credit shall expressly provide that (unless notice of non-renewal is delivered in accordance with the following sentence) it shall be deemed automatically renewed, without amendment, for consecutive periods after such expiration date of one year each during the Term through the date that is at least one hundred twenty (120) days after the Expiration Date. If the Issuing Bank desires not to renew a Letter of Credit, it shall deliver a notice (the “Non-Renewal Notice”) to Landlord by certified mail, return receipt requested, not less than sixty (60) days prior to the then-current expiration date of the Letter of Credit, stating that the Issuing Bank has elected not to renew the Letter of Credit. In such event or if (a) for any other reason the Letter of Credit would expire by its terms in sixty (60) days or less from such date or (b) the Issuing Bank is downgraded so that it no longer satisfies the rating requirements set forth in this Section 4.7, Landlord shall have the right, at its option, either (x) to draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and thereafter hold the proceeds in the Cash Collateral Account and apply them pursuant to the terms of this Article 4, or (y) to require Tenant to procure, or Landlord to procure on Tenant’s behalf at Tenant’s cost and utilizing if necessary the cash proceeds so drawn, a replacement Letter of Credit that satisfies the requirements of this Section 4.7; provided that Landlord shall provide Tenant with notice of any such event at least ten (10) business days before exercising such rights and Tenant may, within ten (10) business days after such notice is provided, deliver a replacement Letter of Credit that satisfies the requirements of this Section 4.7, and provided further that such notice shall not be required in the event Landlord determines in good faith that the delay caused by providing such notice presents a risk that Landlord will not be able to exercise its rights to draw upon the Letter of Credit following such delay. In the event that Tenant’s Letter of Credit expires at any time without the proceeds being drawn down and deposited in the Cash Collateral Account, Tenant shall be obligated to deliver a new Letter of Credit to Landlord complying with the terms of this Section 4.7. Each Letter of Credit shall be governed by the International Standby Practices-ISP98 or any standard set of practices replacing ISP98. Each Letter of Credit shall be substantially in the form attached hereto as Exhibit D. (c) Within three (3) business days following any draw under the Letter of Credit or such shorter period as may be required under the Tenant’s reimbursement agreement with the Issuing Bank, Tenant shall reimburse the Issuing Bank for each such draw in an amount sufficient to insure that the face value of the Letter of Credit is an amount at least equal to the Required Amount and will cause the Issuing Bank to provide written notice to Landlord if such reimbursement is not timely made. In the event Tenant fails to timely reimburse the Letter of Credit bank or increase the face amount of the Letter of Credit required, such failure shall constitute an Event of Default hereunder, and, collectivelyin addition to all other rights and remedies available to Landlord for Tenant’s default, Landlord shall have the “Loan Guaranties”right to draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and shall thereafter hold in the Cash Collateral Account or apply the cash proceeds of the Letter of Credit pursuant to the terms of this Article 4. (d) DCT LLC In addition to the foregoing, if an Event of Default occurs under this Lease, Landlord may draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and thereupon receive all or a portion of the face amount of the Letter of Credit, and use, apply or retain the whole or any part of such proceeds, as the case may be, to the extent required for the payment of any Base Rent, Additional Rent or other amounts due or to become due hereunder or for any reasonable sum which Landlord may expend or may be required to expend by reason of Tenant’s default in respect of any of the terms of this Lease, including any damages or deficiency in the re-letting of the Premises, whether accruing before or after summary proceedings or other re-entry by Landlord. In the case of every such use, application or retention, Tenant shall, within three (3) business days following any such use, application or retention or such shorter period as may be required under the Tenant’s reimbursement agreement with the Issuing Bank, cause the face value of the Letter of Credit to be restored to the Required Amount, and Tenant shall cause DCT or other party acceptable the Issuing Bank to acknowledge to Landlord that such restoration of the Required Amount occurred in a timely manner. In the event the Landlord draws upon the Letter of Credit as provided in this Section 4.7 and retains excess proceeds of such draw in the Cash Collateral Account, Tenant shall only be required to cause the face value of the Letter of Credit to be restored to an amount equal to the applicable Senior Lender to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused Required Amount less the amount of excess proceeds which Landlord has deposited in the Cash Collateral Account. In the event Landlord withdraws funds in the Cash Collateral Account for amounts secured by the act or omission Letter of TRT LLC or any Credit as set forth in this Section 4.7, Tenant shall within three (3) days following Landlord’s notice to Tenant of its controlled Affiliates) in order such withdrawal, cause the face value of the Letter of Credit to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation increased by the amount of Code Section 514(c)(9)(E) and funds withdrawn from the Treasury Regulations thereunderCash Collateral Account. Subject to Section 33.20, if Tenant shall fully and punctually comply with all of the limitation below in terms of this sentenceLease, the Partnership hereby Letter of Credit shall be terminated on the one hundred twentieth (120th) day after the termination of this Lease and delivery of exclusive possession of the Premises to Landlord. (e) In the event of a transfer of Landlord’s interest in the Building or the Property, Landlord shall have the right to transfer the Letter of Credit or Cash Collateral to the transferee and upon such transfer to such transferee, Landlord shall ipso facto be released by Tenant from all liability for the return of the Letter of Credit or Cash Collateral; provided the transferee agrees to indemnify assume Landlord’s obligation to return the Letter of Credit or Cash Collateral; and hold harmless DCT LLC providing Tenant agrees to look solely to the new landlord for the return of said Letter of Credit or Cash Collateral; and it is agreed that the provisions hereof shall apply to every transfer or assignment made of the Letter of Credit or Cash Collateral to a new landlord. Tenant shall promptly execute such Loan Guaranty documents reasonably requested by Landlord as may be necessary to accomplish any such transfer or assignment of the Letter of Credit or Cash Collateral. Tenant shall not assign or encumber or attempt to assign or encumber the Letter of Credit or Cash Collateral and neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance or attempted assignment or encumbrance. Upon ten (or 10) days prior written notice from Landlord, Tenant shall cause any Affiliate Letter of DCT LLC Credit to be modified so that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising it names any Leasehold Mortgagee as the co-beneficiary under the Letter of Credit. The Letter of Credit shall provide that sight drafts presented for payment of monthly Base Rent shall identify the monthly Base Rent payment to which they relate. In the event the Issuing Bank is presented with multiple sight drafts from the enforcement beneficiary and co-beneficiary for payment of the same monthly Base Rent, the Issuing Bank shall honor the first sight draft received by the holder of Issuing Bank for such Loan Guaranty monthly Base Rent payment. If at any time the Issuing Bank is presented with multiple sight drafts from the beneficiary and co-beneficiary for draw of amounts due or claimed due under other than the Loan Guaranty (collectivelysame monthly Base Rent payment, “Loan Guaranty Losses”); provided that and such requested amounts in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against aggregate exceed the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation face value of the Partnership arising under Letter of Credit, the Issuing Bank shall honor the sight draft presented by the co-beneficiary and not the sight draft presented by the beneficiary. (f) From time to time, Tenant may substitute the letter of credit then in effect with a substitute letter of credit meeting the requirements of this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation4.7 and otherwise in substantially the form of the letter of credit then in effect.”

Credit Enhancement. (a) On or before February 15, 2001, Tenant shall deliver to Landlord a Letter of Credit as security for the full and punctual performance by Tenant of all of the terms of this Lease. If the Letter of Credit is not timely delivered, in connection accordance with any Senior LoanSection 2.2(a) of the Purchase Agreement, any Senior Lender requires Landlord will retain a customary guaranty portion of non-recourse carve outs the Purchase Price (as defined in the Purchase Agreement), and Tenant shall have no further obligation to facilitate deliver the closing Letter of Credit. For so long as the Letter of Credit is in effect and funding sufficient funds thereunder shall be available for draw, Landlord shall be entitled to draw such Letter of Credit each month for payment of Base Rent and Additional Rent. In addition, if Landlord shall be entitled to draw the Letter of Credit in whole or in part pursuant to the other provisions of this Lease, Landlord shall have the right, at its option, either to deposit the cash proceeds of any Senior Loan such draw upon the Letter of Credit into a cash collateral account (the “Cash Collateral Account”) established in Landlord’s name and maintained by Landlord or to apply the proceeds to the obligations of Tenant due or to become due hereunder. The Cash Collateral Account shall be under the sole dominion and control of Landlord and Landlord shall have the sole right to make withdrawals from the Cash Collateral Account and to exercise all rights with respect to the amounts deposited in the Cash Collateral Account. (b) The initial letter of credit and any replacement letter of credit issued to Landlord shall satisfy the requirements set forth in this Section 4.7 (each, a “Loan Guaranty” andLetter of Credit”). Each Letter of Credit shall be a clean, collectivelyirrevocable, non-documentary and unconditional letter of credit issued by and drawable upon any commercial bank, trust company, national banking association or savings and loan association with offices for banking and drawing purposes in The City of San Francisco (the “Loan GuarantiesIssuing Bank”), which has outstanding, unsecured, uninsured and unguaranteed indebtedness, or shall have issued a letter of credit or other credit facility that constitutes the primary security for an outstanding indebtedness (which is otherwise uninsured and unguaranteed), that is then rated, without regard to qualification of such rating by symbols such as “+” or “-” or numerical notation, “A” or better by ▇▇▇▇▇’▇ Investment Service and “A” or better by Standard & Poor’s Ratings Service (and is not on credit-watch or similar credit review with negative implication), and has combined capital, surplus and undivided profits of not less than $1,000,000,000. Each Letter of Credit shall (i) name Landlord as beneficiary, (ii) be in the amount of the Required Amount, (iii) have a term of not less than one (1) year, (iv) permit multiple drawings, (v) be fully transferable by Landlord without payment of any fees or charges, (vi) at Landlord’s request, name any Leasehold Mortgagee as a co-beneficiary and (vii) otherwise be in form and content satisfactory to Landlord in its sole discretion. If upon the transfer of any Letter of Credit, any fees or charges shall so be imposed, then such fees or charges shall be payable solely by Tenant and the Letter of Credit shall so specify. Regardless of the initial expiration date of any Letter of Credit, each Letter of Credit shall expressly provide that (unless notice of non-renewal is delivered in accordance with the following sentence) it shall be deemed automatically renewed, without amendment, for consecutive periods after such expiration date of one year each during the Term through the date that is at least one hundred eighty (180) days after the Expiration Date. If the Issuing Bank desires not to renew a Letter of Credit, it shall deliver a notice (the “Non-Renewal Notice”) DCT LLC shall cause DCT or other party acceptable to Landlord by certified mail, return receipt requested, not less than sixty (60) days prior to the applicable Senior Lender then-current expiration date of the Letter of Credit, stating that the Issuing Bank has elected not to provide renew the Letter of Credit. In such Loan Guaranties event or if (a) for any other reason the Letter of Credit would expire by its terms in sixty (60) days or less from such date or (b) the Issuing Bank is downgraded so that it no longer satisfies the rating requirements set forth in this Section 4.7, Landlord shall have the right, at its option, either (x) to draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by thereafter hold the act or omission of TRT LLC or any of its controlled Affiliates) proceeds in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation of Code Section 514(c)(9)(E) the Cash Collateral Account and the Treasury Regulations thereunder. Subject apply them pursuant to the limitation below in terms of this sentenceArticle 4, or (y) to require Tenant to procure, or Landlord to procure on Tenant’s behalf at Tenant’s cost and utilizing if necessary the Partnership hereby agrees to indemnify and hold harmless DCT LLC providing such Loan Guaranty (or any Affiliate cash proceeds so drawn, a replacement Letter of DCT LLC Credit that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from satisfies the enforcement by the holder requirements of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “Loan Guaranty Losses”)this Section 4.7; provided that in no event Landlord shall the Partnership have any obligation to indemnify or hold harmless provide Tenant with notice of any such party event at least ten (10) business days before exercising such rights and Tenant may, within ten (10) business days after such notice is provided, deliver a replacement Letter of Credit that satisfies the requirements of this Section 4.7, and provided further that such notice shall not be required in the event Landlord determines in good faith that the delay caused by providing such notice presents a risk that Landlord will not be able to exercise its rights to draw upon the Letter of Credit following such delay. Each Letter of Credit shall be governed by the International Standby Practices-ISP98 or any standard set of practices replacing ISP98. Each Letter of Credit shall be substantially in the form attached hereto as Exhibit D. (c) Within three (3) business days following any draw under the Letter of Credit or such party have any rights shorter period as may be required under the Tenant’s reimbursement agreement with the Issuing Bank, Tenant shall reimburse the Issuing Bank for each such draw in an amount sufficient to insure that the face value of subrogation against the Partnership) on account Letter of Loan Guaranty Losses Credit is an amount at least equal to the Required Amount and shall cause the Issuing Bank to provide written notice to Landlord if such Loan Guaranty Losses arise from reimbursement is not timely made. In addition, if the fraud, willful misconduct Base Rent or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent Additional Rent increases such that the Partnership has benefited from Required Amount would increase, Tenant shall within five (5) business days after such wrongful action. Any indemnification obligation increase cause the Letter of Credit to be modified so that it satisfies the Partnership arising under requirements of this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation4.”

Credit Enhancement. If (a) Pursuant to the Original Lease, Tenant delivered to Landlord a Letter of Credit as security for the full and punctual performance by Tenant of all of the terms of this Lease. For so long as the Letter of Credit is in connection with any Senior Loaneffect and sufficient funds thereunder shall be available for draw, any Senior Lender requires a customary guaranty Landlord shall be entitled to draw such Letter of non-recourse carve outs Credit each month for payment of Base Rent and Additional Rent. In addition, if Landlord shall be entitled to facilitate draw the closing and funding Letter of Credit in whole or in part pursuant to the other provisions of this Lease, Landlord shall have the right, at its option, either to deposit the cash proceeds of any Senior Loan such draw upon the Letter of Credit into a cash collateral account (the “Cash Collateral Account”) established in Landlord’s name and maintained by Landlord or to apply the proceeds to the obligations of Tenant due or to become due hereunder. The Cash Collateral Account shall be under the sole dominion and control of Landlord and Landlord shall have the sole right to make withdrawals from the Cash Collateral Account and to exercise all rights with respect to the amounts deposited in the Cash Collateral Account. (b) The initial letter of credit and any replacement letter of credit issued to Landlord shall satisfy the requirements set forth in this Section 4.7 (each, a “Loan GuarantyLetter of Credit”). Each Letter of Credit shall be a clean, irrevocable, non-documentary and unconditional letter of credit issued by and drawable upon any commercial bank, trust company, national banking association or savings and loan association with offices for banking and drawing purposes in The City of San Francisco or the City of New York (the “Issuing Bank”), which has outstanding, unsecured, uninsured and unguaranteed indebtedness, or shall have issued a letter of credit or other credit facility that constitutes the primary security for an outstanding indebtedness (which is otherwise uninsured and unguaranteed), that is then rated, without regard to qualification of such rating by symbols such as “+” or “-” or numerical notation, “A” or better by ▇▇▇▇▇’▇ Investment Service and “A” or better by Standard & Poor’s Ratings Service (and is not on credit-watch or similar credit review with negative implication), and has combined capital, surplus and undivided profits of not less than $1,000,000,000. Each Letter of Credit shall (i) name Landlord as beneficiary, (ii) be in the amount of the Required Amount, (iii) have a term of not less than one (1) year, (iv) permit multiple drawings, (v) be fully transferable by Landlord without payment of any fees or charges, (vi) at Landlord’s request, name any Leasehold Mortgagee as a co-beneficiary and (vii) otherwise be in form and content satisfactory to Landlord in its sole discretion. If upon the transfer of any Letter of Credit, any fees or charges shall so be imposed, then such fees or charges shall be payable solely by Tenant and the Letter of Credit shall so specify. Regardless of the initial expiration date of any Letter of Credit, each Letter of Credit shall expressly provide that (unless notice of non-renewal is delivered in accordance with the following sentence) it shall be deemed automatically renewed, without amendment, for consecutive periods after such expiration date of one year each during the Term through the date that is at least one hundred twenty (120) days after the Expiration Date. If the Issuing Bank desires not to renew a Letter of Credit, it shall deliver a notice (the “Non-Renewal Notice”) to Landlord by certified mail, return receipt requested, not less than sixty (60) days prior to the then-current expiration date of the Letter of Credit, stating that the Issuing Bank has elected not to renew the Letter of Credit. In such event or if (a) for any other reason the Letter of Credit would expire by its terms in sixty (60) days or less from such date or (b) the Issuing Bank is downgraded so that it no longer satisfies the rating requirements set forth in this Section 4.7, Landlord shall have the right, at its option, either (x) to draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and thereafter hold the proceeds in the Cash Collateral Account and apply them pursuant to the terms of this Article 4, or (y) to require Tenant to procure, or Landlord to procure on Tenant’s behalf at Tenant’s cost and utilizing if necessary the cash proceeds so drawn, a replacement Letter of Credit that satisfies the requirements of this Section 4.7; provided that Landlord shall provide Tenant with notice of any such event at least ten (10) business days before exercising such rights and Tenant may, within ten (10) business days after such notice is provided, deliver a replacement Letter of Credit that satisfies the requirements of this Section 4.7, and provided further that such notice shall not be required in the event Landlord determines in good faith that the delay caused by providing such notice presents a risk that Landlord will not be able to exercise its rights to draw upon the Letter of Credit following such delay. In the event that Tenant’s Letter of Credit expires at any time without the proceeds being drawn down and deposited in the Cash Collateral Account, Tenant shall be obligated to deliver a new Letter of Credit to Landlord complying with the terms of this Section 4.7. Each Letter of Credit shall be governed by the International Standby Practices-ISP98 or any standard set of practices replacing ISP98. Each Letter of Credit shall be substantially in the form attached hereto as Exhibit D. (c) Within three (3) business days following any draw under the Letter of Credit or such shorter period as may be required under the Tenant’s reimbursement agreement with the Issuing Bank, Tenant shall reimburse the Issuing Bank for each such draw in an amount sufficient to insure that the face value of the Letter of Credit is an amount at least equal to the Required Amount and will cause the Issuing Bank to provide written notice to Landlord if such reimbursement is not timely made. In the event Tenant fails to timely reimburse the Letter of Credit bank or increase the face amount of the Letter of Credit required, such failure shall constitute an Event of Default hereunder, and, collectivelyin addition to all other rights and remedies available to Landlord for Tenant’s default, Landlord shall have the “Loan Guaranties”right to draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and shall thereafter hold in the Cash Collateral Account or apply the cash proceeds of the Letter of Credit pursuant to the terms of this Article 4. (d) DCT LLC In addition to the foregoing, if an Event of Default occurs under this Lease, Landlord may draw the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and thereupon receive all or a portion of the face amount of the Letter of Credit, and use, apply or retain the whole or any part of such proceeds, as the case may be, to the extent required for the payment of any Base Rent, Additional Rent or other amounts due or to become due hereunder or for any reasonable sum which Landlord may expend or may be required to expend by reason of Tenant’s default in respect of any of the terms of this Lease, including any damages or deficiency in the re-letting of the Premises, whether accruing before or after summary proceedings or other re-entry by Landlord. In the event Landlord obtains an arbitration award or judicial determination entitling Landlord to indemnification or monetary damages under the Purchase Agreements or the Ground Lease Assignments, Landlord may draw upon the full amount of the Letter of Credit, by sight draft on the Issuing Bank, and thereupon receive all or a portion of the face amount of the Letter of Credit, in an amount equal to the amount which Landlord is so entitled under the Purchase Agreements or Ground Lease Assignments. In the case of every such use, application or retention, Tenant shall, within three (3) business days following any such use, application or retention or such shorter period as may be required under the Tenant’s reimbursement agreement with the Issuing Bank, cause the face value of the Letter of Credit to be restored to the Required Amount, and Tenant shall cause DCT or other party acceptable the Issuing Bank to acknowledge to Landlord that such restoration of the Required Amount occurred in a timely manner. In the event the Landlord draws upon the Letter of Credit as provided in this Section 4.7 and retains excess proceeds of such draw in the Cash Collateral Account, Tenant shall only be required to cause the face value of the Letter of Credit to be restored to an amount equal to the applicable Senior Lender to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused Required Amount less the amount of excess proceeds which Landlord has deposited in the Cash Collateral Account. In the event Landlord withdraws funds in the Cash Collateral Account for amounts secured by the act or omission Letter of TRT LLC or any Credit as set forth in this Section 4.7, Tenant shall within three (3) days following Landlord’s notice to Tenant of its controlled Affiliates) in order such withdrawal, cause the face value of the Letter of Credit to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation increased by the amount of Code Section 514(c)(9)(E) and funds withdrawn from the Treasury Regulations thereunderCash Collateral Account. Subject to Section 33.20, if Tenant shall fully and punctually comply with all of the limitation below in terms of this sentenceLease, the Partnership hereby Letter of Credit shall be terminated on the one hundred twentieth (120th) day after the termination of this Lease in its entirety and delivery of exclusive possession of the Premises to Landlord; provided, however, if there shall be more than one Option Termination Date by operation of the second proviso of Section 33.20(b), then if Tenant shall fully and punctually comply with all of the terms of this Lease, (x) upon the one hundred twentieth (120th) day after the Option Termination Date for the Top Floors and delivery of exclusive possession of the Top Floors to Landlord, the Required Amount shall be reduced to $2,504,945, and (y) upon the one hundred twentieth (120th) day after the Option Termination Date for the Lower Floors and delivery of exclusive possession of the Lower Floors to Landlord, the Letter of Credit shall be terminated. (e) In the event of a transfer of Landlord’s interest in the Building or the Property, Landlord shall have the right to transfer the Letter of Credit or Cash Collateral to the transferee and upon such transfer to such transferee, Landlord shall ipso facto be released by Tenant from all liability for the return of the Letter of Credit or Cash Collateral; provided the transferee agrees to indemnify assume Landlord’s obligation to return the Letter of Credit or Cash Collateral; and hold harmless DCT LLC providing Tenant agrees to look solely to the new landlord for the return of said Letter of Credit or Cash Collateral; and it is agreed that the provisions hereof shall apply to every transfer or assignment made of the Letter of Credit or Cash Collateral to a new landlord. Tenant shall promptly execute such Loan Guaranty documents reasonably requested by Landlord as may be necessary to accomplish any such transfer or assignment of the Letter of Credit or Cash Collateral. Tenant shall not assign or encumber or attempt to assign or encumber the Letter of Credit or Cash Collateral and neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance or attempted assignment or encumbrance. Upon ten (or 10) days prior written notice from Landlord, Tenant shall cause any Affiliate Letter of DCT LLC Credit to be modified so that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising it names any Leasehold Mortgagee as the co-beneficiary under the Letter of Credit. The Letter of Credit shall provide that sight drafts presented for payment of monthly Base Rent shall identify the monthly Base Rent payment to which they relate. In the event the Issuing Bank is presented with multiple sight drafts from the enforcement beneficiary and co-beneficiary for payment of the same monthly Base Rent, the Issuing Bank shall honor the first sight draft received by the holder of Issuing Bank for such Loan Guaranty monthly Base Rent payment. If at any time the Issuing Bank is presented with multiple sight drafts from the beneficiary and co-beneficiary for draw of amounts due or claimed due under other than the Loan Guaranty (collectivelysame monthly Base Rent payment, “Loan Guaranty Losses”); provided that and such requested amounts in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against aggregate exceed the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Any indemnification obligation face value of the Partnership arising under Letter of Credit, the Issuing Bank shall honor the sight draft presented by the co-beneficiary and not the sight draft presented by the beneficiary. (f) From time to time, Tenant may substitute the letter of credit then in effect with a substitute letter of credit meeting the requirements of this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation4.7 and otherwise in substantially the form of the letter of credit then in effect.”

Credit Enhancement. If in connection with any Senior Loan, any Senior Lender requires a customary guaranty of non-recourse carve outs to facilitate the closing and funding of any Senior Loan (each, a “Loan Guaranty” and, collectively, the “Loan Guaranties”) DCT LLC the Partnership shall cause DCT or such other party as is acceptable to the applicable Senior Lender (each a “Loan Guarantor”) to provide such Loan Guaranties and shall furnish such representations or other documentation as TRT LLC may require (excluding any liability caused by the act or omission of TRT LLC or any of its controlled Affiliates) in order to determine whether such Loan Guaranty gives rise to partner nonrecourse debt that could reasonably be expected to result in a violation of Code Section 514(c)(9)(E) and the Treasury Regulations thereunder. Subject to the limitation below in this sentence, the Partnership hereby agrees to indemnify indemnify, defend and hold harmless DCT LLC each Loan Guarantor providing such Loan Guaranty (or any Affiliate of DCT LLC that enters into a Loan Guaranty) from and against all losses, costs and expenses, including, without limitation, reasonable attorney fees arising from the enforcement by the holder of such Loan Guaranty of amounts due or claimed due under the Loan Guaranty (collectively, “Loan Guaranty Losses”); provided that in no event shall the Partnership have any obligation to indemnify or hold harmless any such party (or shall such party have any rights of subrogation against the Partnership) on account of Loan Guaranty Losses if such Loan Guaranty Losses arise from or are related to, directly or indirectly, the fraud, willful misconduct or gross negligence of a Loan Guarantor or any of its Affiliates, except to the extent that the Partnership has benefited from such wrongful action. Notwithstanding the foregoing, to the extent that (A) TRT LLC or any Affiliate of TRT is the Loan Guarantor, DCT LLC, and not the Partnership, shall indemnify, defend and hold harmless the Loan Guarantor from and against all Loan Guaranty Losses to the extent such Loan Guaranty Losses arise from or are related to, directly or indirectly, the fraud, willful misconduct or gross negligence of DCT LLC or any of its controlled Affiliates, except or (B) DCT LLC or any Affiliate of DCT is the Loan Guarantor, TRT LLC, and not the Partnership, shall indemnify, defend and hold harmless the Loan Guarantor from and against all Loan Guaranty Losses to the extent that such Loan Guaranty Losses arise from or are related to, directly or indirectly, the Partnership has benefited from such wrongful actionfraud, willful misconduct or gross negligence of TRT LLC or any of its Affiliates. Any indemnification obligation of the Partnership arising under this Section shall be referred to herein as a “Loan Guaranty Indemnification Obligation”.”